| Part IUsing NY PJI to Structure and Develop Your CaseChapter 1Introduction§ 1:1A brief history of NY PJI and its intended use§ 1:2Content of NY PJI§ 1:3Litigation planning in general; knowing in advance how you want to finishKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 1:1 A brief history of NY PJI and its intended use1Pattern jury instructions (also commonly referred to as “jury charges”) are widely used throughout multiple jurisdictions and are typically well received by both the bench and bar. They are designed to instruct jurors, in a clear and concise manner and form they can readily understand, on the applicable principles of law particular to the case they are hearing. Jurors are instructed to apply those principles of law to the facts as they find those facts to be. They are further instructed that they are required to accept the Judge's instructions on the law whether they agree with those instructions or not. Thus, it is readily apparent that model or pattern charges are absolutely essential to the process by which a dispute is resolved and a jury verdict ultimately rendered.The development of standardized instructions to the jury is essentially a twentieth century phenomenon. This can likely be explained by the fact that during the early development of the jury system, jurors often decided both questions of law and fact. “The lack of any clear delineation between the powers of judge and jury until the latter half of the nineteenth century may have lessened the need for instructions on the law, pattern or otherwise, in many jurisdictions.”2 In the early 1900's legal scholars and jurists began publishing collections of various charges found in appellate court decisions.3 Today, most states have “pattern” charges in various forms; some of these bear a judicial or legislative imprimatur, while others, like New York's, are used and cited widely by custom even though they lack an official sanction.The roots of the New York Pattern Jury Instructions Civil publication (NY PJI) can be traced back to November 1962. Chief Judge Desmond of the New York State Court of Appeals suggested at that time that a committee of Supreme Court Justices be established for the purpose of drafting model charges. The first meeting of the Committee was held on December 17, 1962 and before completion of the first volume, an additional 22 meetings were held, many of them four days in length. The first Chairman was Justice Bernard S. Meyer, who later went on to a distinguished career as an outstanding jurist on the New York State Court of Appeals. Judge Meyer served as chair for 17 years. The other committee members of the inaugural group were Justices Aron Steuer, William B. Lawless, M. Henry Martuscello and G. Robert Witmer. Professor Peter W. Thornton joined the Committee as its first reporter. The original committee remained intact through 1971 and published the original two volumes. Legal scholars and commentators alike still marvel at this extraordinary accomplishment by only five Justices of the New York Supreme Court and their reporter. It is a tribute to Justice Meyer, his incredible intellect and work ethic, that as chairperson he was often found in his chambers late at night and early in the morning working on the seminal publication of the NY PJI. The first publication was in 1965 and was followed by a second edition of Volume 1 in 1972. The pattern charges were drafted and revised multiple times before receiving tentative final approval by the Committee. Thereafter, upon tentative approval of the proposed charges, the drafts were circulated among three separate Coordinating Committees of both federal and state judges for their comment and approval. The reporter and his staff then checked the citations for accuracy and form.The treatise has evolved over the past 36 years with changes in the composition of the Committee and reporters. Today, the Committee on Pattern Jury Instructions is chaired by the Hon. Leon D. Lazer, who has served in that capacity since 1979. Justice Lazer, now retired, was an Associate Justice of the New York Supreme Court, Appellate Division, Second Department. NY PJI has likewise undergone significant change as it evolved over the same period of time. The vast changes in New York statutory and case law resulted in the need to expand what was once a single Volume 1 into Volumes 1A and 1B. The publication of the Third Edition of Volume 1 in 1997 permanently retired the original hard volume and was replaced by the two set paperback volumes, now updated and published annually. The most recent revisions to Volume 2 were completed in 2009, and Volume 2 is likewise updated and published annually. Volume 2 of the NY PJI covers topics other than negligence, including intentional torts, contracts, divorce, landlord/tenant, will contests, mental hygiene law, employment discrimination, and navigation law. With the 2014 Edition, Volume 2 was likewise divided into Volumes 2A and 2B.The NY PJI is a publication primarily seen as a tool to assist counsel in drafting requests to charge and to assist the court in crafting a charge for the jury specific to the facts of the particular case. The pattern charges have been held by the New York appellate courts to be advisory in nature and, unlike some jurisdictions, are not mandatory. (No error in the omission of a portion of the pattern jury instruction on malicious prosecution | Part IUsing NY PJI to Structure and Develop Your CaseChapter 1Introduction§ 1:1A brief history of NY PJI and its intended use§ 1:2Content of NY PJI§ 1:3Litigation planning in general; knowing in advance how you want to finishKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 1:1 A brief history of NY PJI and its intended use1Pattern jury instructions (also commonly referred to as “jury charges”) are widely used throughout multiple jurisdictions and are typically well received by both the bench and bar. They are designed to instruct jurors, in a clear and concise manner and form they can readily understand, on the applicable principles of law particular to the case they are hearing. Jurors are instructed to apply those principles of law to the facts as they find those facts to be. They are further instructed that they are required to accept the Judge's instructions on the law whether they agree with those instructions or not. Thus, it is readily apparent that model or pattern charges are absolutely essential to the process by which a dispute is resolved and a jury verdict ultimately rendered.The development of standardized instructions to the jury is essentially a twentieth century phenomenon. This can likely be explained by the fact that during the early development of the jury system, jurors often decided both questions of law and fact. “The lack of any clear delineation between the powers of judge and jury until the latter half of the nineteenth century may have lessened the need for instructions on the law, pattern or otherwise, in many jurisdictions.”2 In the early 1900's legal scholars and jurists began publishing collections of various charges found in appellate court decisions.3 Today, most states have “pattern” charges in various forms; some of these bear a judicial or legislative imprimatur, while others, like New York's, are used and cited widely by custom even though they lack an official sanction.The roots of the New York Pattern Jury Instructions Civil publication (NY PJI) can be traced back to November 1962. Chief Judge Desmond of the New York State Court of Appeals suggested at that time that a committee of Supreme Court Justices be established for the purpose of drafting model charges. The first meeting of the Committee was held on December 17, 1962 and before completion of the first volume, an additional 22 meetings were held, many of them four days in length. The first Chairman was Justice Bernard S. Meyer, who later went on to a distinguished career as an outstanding jurist on the New York State Court of Appeals. Judge Meyer served as chair for 17 years. The other committee members of the inaugural group were Justices Aron Steuer, William B. Lawless, M. Henry Martuscello and G. Robert Witmer. Professor Peter W. Thornton joined the Committee as its first reporter. The original committee remained intact through 1971 and published the original two volumes. Legal scholars and commentators alike still marvel at this extraordinary accomplishment by only five Justices of the New York Supreme Court and their reporter. It is a tribute to Justice Meyer, his incredible intellect and work ethic, that as chairperson he was often found in his chambers late at night and early in the morning working on the seminal publication of the NY PJI. The first publication was in 1965 and was followed by a second edition of Volume 1 in 1972. The pattern charges were drafted and revised multiple times before receiving tentative final approval by the Committee. Thereafter, upon tentative approval of the proposed charges, the drafts were circulated among three separate Coordinating Committees of both federal and state judges for their comment and approval. The reporter and his staff then checked the citations for accuracy and form.The treatise has evolved over the past 36 years with changes in the composition of the Committee and reporters. Today, the Committee on Pattern Jury Instructions is chaired by the Hon. Leon D. Lazer, who has served in that capacity since 1979. Justice Lazer, now retired, was an Associate Justice of the New York Supreme Court, Appellate Division, Second Department. NY PJI has likewise undergone significant change as it evolved over the same period of time. The vast changes in New York statutory and case law resulted in the need to expand what was once a single Volume 1 into Volumes 1A and 1B. The publication of the Third Edition of Volume 1 in 1997 permanently retired the original hard volume and was replaced by the two set paperback volumes, now updated and published annually. The most recent revisions to Volume 2 were completed in 2009, and Volume 2 is likewise updated and published annually. Volume 2 of the NY PJI covers topics other than negligence, including intentional torts, contracts, divorce, landlord/tenant, will contests, mental hygiene law, employment discrimination, and navigation law. With the 2014 Edition, Volume 2 was likewise divided into Volumes 2A and 2B.The NY PJI is a publication primarily seen as a tool to assist counsel in drafting requests to charge and to assist the court in crafting a charge for the jury specific to the facts of the particular case. The pattern charges have been held by the New York appellate courts to be advisory in nature and, unlike some jurisdictions, are not mandatory. (No error in the omission of a portion of the pattern jury instruction on malicious prosecution |
| () | (PJI 3:50) |
| inasmuch as the charge given properly conveyed to the jury the substance of the rule and there is no requirement that the pattern jury instructions be explicitly followed.) Feldman v. Town of Bethel, 106 A.D.2d 695, 484 N.Y.S.2d 147 (3d Dep't 1984); see also Ellis v. DiChiara, 38 A.D.2d 780, 781, 328 N.Y.S.2d 36 (4th Dep't 1972)). Although advisory, NY PJI is often cited by both the state and federal appellate courts in their written decisions (see, e.g., Bingham v. New York City Transit Authority, 8 N.Y.3d 176, 832 N.Y.S.2d 125, 864 N.E.2d 49 (2007); DiBella v. Hopkins, 403 F.3d 102, 33 Media L. Rep. (BNA) 1979, 66 Fed. R. Evid. Serv. 1104 (2d Cir. 2005)).The intended use of the NY PJI is set forth in the introductory pages of each volume. Paragraph one under the caption HOW TO USE THESE VOLUMES reads in part:New York Pattern Jury Instructions Civil, the “PJI,” is designed to assist judges in preparing their jury charges and counsel in preparing their requests to charge. Over time, it has also proved to be a valuable research resource for both bench and bar.(1A NY PJI3d at xxxix (2018)).Many if not most practitioners think of the NY PJI volumes solely as a tool to draft proposed charges at the conclusion of their jury trial. After all, the name itself speaks of a “jury.” Typically, at the end of the trial and after the proofs are closed, the court orders a “charge conference” to discuss the proposed jury charges submitted by counsel and the charges proposed by the court. Often, shortly after such a conference is ordered by the Judge, an attorney may be visiting the library shelf of his or her law firm for the first time to pull out the NY PJI and the relevant volume(s). If, indeed, your first introduction to these volumes is at or near the conclusion of your trial, then you may have made a very serious mistake.The purpose of this handbook is to give the practitioner a road map for the use of this four volume set from the very first client interview through final summation to the jury.§ 1:2 Content of NY PJIAs noted above, many practitioners—though not judges—are unaware that NY PJI is much more than a set of pattern jury instructions. In fact, with its boldfaced instructions followed by intensively-researched Comments (the commentary occupies far more space than the instructions themselves; the Table of Cases runs over 900 pages), it more closely resembles a “Restatement” than a book of forms. Yet it is not a “restatement” in the proper sense of that term, because the Committee and Reporters have not seen it as their function to “improve” on or to distill in a creative manner the statements of the law already articulated by New York courts. Had they done so, they would have run the risk of drafting a set of instructions that would be overturned as often as they were upheld.Therein lies the unique strength of NY PJI. Rather than a restatement, it is an extremely well-researched, erudite statement of New York law on a wide range of topics. It is intended, therefore, to be extraordinarily useful—and it is. The book itself is as useful for lawyers as the instructions and special verdict forms are to jurors.The coverage of NY PJI is both broad and deep. Substantively, it covers not only negligence as such (and in its many permutations), but also premises liability, products liability, municipal liability, workers compensation law, vicarious responsibility, respondeat superior, wrongful death, prima facie tort, conversion, fraud and deceit, defamation, privacy, abuse of process, unfair competition, and interference with contractual relationship. It covers contracts, including specifically insurance contracts, bailments, and banking relationships. Divorce, landlord-tenant; probate; mental hygiene, employment discrimination, navigation law—all of these are specifically treated.The Comments and Introductory Statements interspersed without great fanfare throughout the NY PJI volumes are not limited to issues that juries are likely to face, but cover a surprisingly broad range of questions of law that lawyers are likely to encounter in handling each of these types of cases.In addition, the book is replete with discussion of the procedural law and rules governing juries—jury selection (the approved methods, voir dire, challenges), note-taking, questions, deadlocked juries, views of the scene—as well as the law concerning jury instructions and verdict forms themselves.The content of NY PJI is such that greater knowledge of it should lead ineluctably to better and more efficient case selection and evaluation by lawyers, better trial preparation by lawyers and judges, and fairer outcomes for all.§ 1:3 Litigation planning in general; knowing in advance how you want to finishDuring my (Judge Lunn) time on the trial and appellate bench I was often called upon to participate in continuing education courses for the local and state bar associations. One of the more popular topics in litigation seminars was the nuts and bolts of trying a case with an entire section devoted to a view from the bench. Often such a seminar was geared toward the younger attorneys. Many of them were about to try their first case.A key “practice pointer,” and in fact a separate section of my outline, was devoted to “beginning your case preparation at the end.” The description itself sounds odd. The theory is actually quite simple. The very last words your jury will hear before they retire to decide the outcome of your case will come from the Judge presiding at the trial. The words will be the jury charge itself, and at least 90% of those words will likely be lifted verbatim from the NY PJI. Thus, it makes good sense to use these volumes to structure your case right from the outset. Throughout this handbook you will be shown exactly how this is accomplished to maximize your chances for success. To borrow a common sports phrase—it is “game planning,” and the NY PJI and this handbook become your playbook. Don't wait until your Judge orders a charge conference to pull these volumes off the shelf and put them to work. Do it now. Do it as soon as you receive that first call from your client and prior to your first conference.Chapter 2NY PJI as a Research and Planning Tool§ 2:1Case evaluation—Limitations§ 2:2—Distilling the base elements of your case§ 2:3—Quality and availability of evidence§ 2:4—Projecting damages§ 2:5Drafting pleadings§ 2:6Targeting discovery§ 2:7Planning for trial—How many trials?§ 2:8—Openings and closings§ 2:9—Law concerning juries and jury selectionKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 2:1 Case evaluation—LimitationsNobody can afford to miss a limitations deadline. Before accepting a case, it is important for an attorney to know not only what statute of limitations applies but also how it applies. An attorney needs to know at the earliest possible moment whether it is already too late to file suit, and, if the time for filing suit has not already passed, when it will be too late to do so. The limitations issue can be particularly thorny in a medical malpractice case due to the statutory requirement to verify the merits of the case before filing.Although NY PJI is a set of jury instructions, it offers a vast treasure of information on limitations issues even though these are mostly questions of law. For example, in the case of a medical malpractice action, the Committee and its Reporters have written a well-developed comment on limitations, which is tucked away in the introduction to the instruction on “continuous treatment,” 1B | inasmuch as the charge given properly conveyed to the jury the substance of the rule and there is no requirement that the pattern jury instructions be explicitly followed.) Feldman v. Town of Bethel, 106 A.D.2d 695, 484 N.Y.S.2d 147 (3d Dep't 1984); see also Ellis v. DiChiara, 38 A.D.2d 780, 781, 328 N.Y.S.2d 36 (4th Dep't 1972)). Although advisory, NY PJI is often cited by both the state and federal appellate courts in their written decisions (see, e.g., Bingham v. New York City Transit Authority, 8 N.Y.3d 176, 832 N.Y.S.2d 125, 864 N.E.2d 49 (2007); DiBella v. Hopkins, 403 F.3d 102, 33 Media L. Rep. (BNA) 1979, 66 Fed. R. Evid. Serv. 1104 (2d Cir. 2005)).The intended use of the NY PJI is set forth in the introductory pages of each volume. Paragraph one under the caption HOW TO USE THESE VOLUMES reads in part:New York Pattern Jury Instructions Civil, the “PJI,” is designed to assist judges in preparing their jury charges and counsel in preparing their requests to charge. Over time, it has also proved to be a valuable research resource for both bench and bar.(1A NY PJI3d at xxxix (2018)).Many if not most practitioners think of the NY PJI volumes solely as a tool to draft proposed charges at the conclusion of their jury trial. After all, the name itself speaks of a “jury.” Typically, at the end of the trial and after the proofs are closed, the court orders a “charge conference” to discuss the proposed jury charges submitted by counsel and the charges proposed by the court. Often, shortly after such a conference is ordered by the Judge, an attorney may be visiting the library shelf of his or her law firm for the first time to pull out the NY PJI and the relevant volume(s). If, indeed, your first introduction to these volumes is at or near the conclusion of your trial, then you may have made a very serious mistake.The purpose of this handbook is to give the practitioner a road map for the use of this four volume set from the very first client interview through final summation to the jury.§ 1:2 Content of NY PJIAs noted above, many practitioners—though not judges—are unaware that NY PJI is much more than a set of pattern jury instructions. In fact, with its boldfaced instructions followed by intensively-researched Comments (the commentary occupies far more space than the instructions themselves; the Table of Cases runs over 900 pages), it more closely resembles a “Restatement” than a book of forms. Yet it is not a “restatement” in the proper sense of that term, because the Committee and Reporters have not seen it as their function to “improve” on or to distill in a creative manner the statements of the law already articulated by New York courts. Had they done so, they would have run the risk of drafting a set of instructions that would be overturned as often as they were upheld.Therein lies the unique strength of NY PJI. Rather than a restatement, it is an extremely well-researched, erudite statement of New York law on a wide range of topics. It is intended, therefore, to be extraordinarily useful—and it is. The book itself is as useful for lawyers as the instructions and special verdict forms are to jurors.The coverage of NY PJI is both broad and deep. Substantively, it covers not only negligence as such (and in its many permutations), but also premises liability, products liability, municipal liability, workers compensation law, vicarious responsibility, respondeat superior, wrongful death, prima facie tort, conversion, fraud and deceit, defamation, privacy, abuse of process, unfair competition, and interference with contractual relationship. It covers contracts, including specifically insurance contracts, bailments, and banking relationships. Divorce, landlord-tenant; probate; mental hygiene, employment discrimination, navigation law—all of these are specifically treated.The Comments and Introductory Statements interspersed without great fanfare throughout the NY PJI volumes are not limited to issues that juries are likely to face, but cover a surprisingly broad range of questions of law that lawyers are likely to encounter in handling each of these types of cases.In addition, the book is replete with discussion of the procedural law and rules governing juries—jury selection (the approved methods, voir dire, challenges), note-taking, questions, deadlocked juries, views of the scene—as well as the law concerning jury instructions and verdict forms themselves.The content of NY PJI is such that greater knowledge of it should lead ineluctably to better and more efficient case selection and evaluation by lawyers, better trial preparation by lawyers and judges, and fairer outcomes for all.§ 1:3 Litigation planning in general; knowing in advance how you want to finishDuring my (Judge Lunn) time on the trial and appellate bench I was often called upon to participate in continuing education courses for the local and state bar associations. One of the more popular topics in litigation seminars was the nuts and bolts of trying a case with an entire section devoted to a view from the bench. Often such a seminar was geared toward the younger attorneys. Many of them were about to try their first case.A key “practice pointer,” and in fact a separate section of my outline, was devoted to “beginning your case preparation at the end.” The description itself sounds odd. The theory is actually quite simple. The very last words your jury will hear before they retire to decide the outcome of your case will come from the Judge presiding at the trial. The words will be the jury charge itself, and at least 90% of those words will likely be lifted verbatim from the NY PJI. Thus, it makes good sense to use these volumes to structure your case right from the outset. Throughout this handbook you will be shown exactly how this is accomplished to maximize your chances for success. To borrow a common sports phrase—it is “game planning,” and the NY PJI and this handbook become your playbook. Don't wait until your Judge orders a charge conference to pull these volumes off the shelf and put them to work. Do it now. Do it as soon as you receive that first call from your client and prior to your first conference.Chapter 2NY PJI as a Research and Planning Tool§ 2:1Case evaluation—Limitations§ 2:2—Distilling the base elements of your case§ 2:3—Quality and availability of evidence§ 2:4—Projecting damages§ 2:5Drafting pleadings§ 2:6Targeting discovery§ 2:7Planning for trial—How many trials?§ 2:8—Openings and closings§ 2:9—Law concerning juries and jury selectionKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 2:1 Case evaluation—LimitationsNobody can afford to miss a limitations deadline. Before accepting a case, it is important for an attorney to know not only what statute of limitations applies but also how it applies. An attorney needs to know at the earliest possible moment whether it is already too late to file suit, and, if the time for filing suit has not already passed, when it will be too late to do so. The limitations issue can be particularly thorny in a medical malpractice case due to the statutory requirement to verify the merits of the case before filing.Although NY PJI is a set of jury instructions, it offers a vast treasure of information on limitations issues even though these are mostly questions of law. For example, in the case of a medical malpractice action, the Committee and its Reporters have written a well-developed comment on limitations, which is tucked away in the introduction to the instruction on “continuous treatment,” 1B |
| , | NY PJI3d 2:149, |
| at 10 to 23 (2018). There one learns, among other things, that although disposition of the statute of limitations defense usually comes at an early stage of the action, the trial court has discretion to defer the question until trial, presenting relevant factual issues to the jury if appropriate. Twelve pages of the article with scores of citations cover “continuous treatment” alone (because “when the claim arises out of an act of malpractice committed during a course of continuous treatment which is related to the original condition or complaint, the statute of limitations is tolled until the end of the course of continuous treatment of the patient by the defendant,” 1B NY PJI3d 2:149, at 10 (2018)), and both the text of the comment and the instruction itself explain what is and what is not “continuous treatment,” and when a course of continuing treatment ends for purposes of applying the statute of limitations. The jury indeed has an important role—it “must decide when defendant . . . last treated plaintiff . . . for” the illness or condition in dispute. PJI 2:149.From the comment, one learns not only the general limitations rules and how they have been applied, but what it takes for any given case to qualify as a “malpractice” action covered by the malpractice statute; when and how the statute may be tolled by infancy, insanity, and lack of knowledge of the condition, as well as continuous treatment; the role of informed consent; and how the statute of limitations may be circumvented in cases of fraud or estoppel, contract liability and other alternative theories.Nor is the comment limited to medical malpractice, even though the instruction which it precedes, | at 10 to 23 (2018). There one learns, among other things, that although disposition of the statute of limitations defense usually comes at an early stage of the action, the trial court has discretion to defer the question until trial, presenting relevant factual issues to the jury if appropriate. Twelve pages of the article with scores of citations cover “continuous treatment” alone (because “when the claim arises out of an act of malpractice committed during a course of continuous treatment which is related to the original condition or complaint, the statute of limitations is tolled until the end of the course of continuous treatment of the patient by the defendant,” 1B NY PJI3d 2:149, at 10 (2018)), and both the text of the comment and the instruction itself explain what is and what is not “continuous treatment,” and when a course of continuing treatment ends for purposes of applying the statute of limitations. The jury indeed has an important role—it “must decide when defendant . . . last treated plaintiff . . . for” the illness or condition in dispute. PJI 2:149.From the comment, one learns not only the general limitations rules and how they have been applied, but what it takes for any given case to qualify as a “malpractice” action covered by the malpractice statute; when and how the statute may be tolled by infancy, insanity, and lack of knowledge of the condition, as well as continuous treatment; the role of informed consent; and how the statute of limitations may be circumvented in cases of fraud or estoppel, contract liability and other alternative theories.Nor is the comment limited to medical malpractice, even though the instruction which it precedes, |
| , | PJI 2:149, |
| is. There are several pages of heavily-sourced discussion of attorney, architect and other professional malpractice, capped by a discussion of burden of proof and how and when a court may use a jury to assist in the decision of a limitations issue.Nearly every substantive area the Committee and Reporters have addressed in NY PJI contains some discussions of limitations issues. See, for related examples, the discussion of statutes of limitation and notice of claim relative to contract actions, in the Comment following | is. There are several pages of heavily-sourced discussion of attorney, architect and other professional malpractice, capped by a discussion of burden of proof and how and when a court may use a jury to assist in the decision of a limitations issue.Nearly every substantive area the Committee and Reporters have addressed in NY PJI contains some discussions of limitations issues. See, for related examples, the discussion of statutes of limitation and notice of claim relative to contract actions, in the Comment following |
| PJI 4:1 |
| (“Contracts—Elements”), 2B NY PJI2d 4:1, at 85 to 91 (2018), and the cite-laden discussion of limitations in employment discrimination in the Introductory Statement preceding | (“Contracts—Elements”), 2B NY PJI2d 4:1, at 85 to 91 (2018), and the cite-laden discussion of limitations in employment discrimination in the Introductory Statement preceding |
| PJI 9:1 |
| (“Employment Discrimination—Statute of Limitations”), 2B | (“Employment Discrimination—Statute of Limitations”), 2B |
| , | NY PJI2d 9:1, |
| at 1027 to 1032 (2018).Like so much of the research appearing in NY PJI, the set's treatment of limitations issues does not necessarily appear in the NY PJI Table of Contents. One must consult the Index under either “Statute of Limitations” or one of the numerous boldfaced substantive headings within that index topic. The headings are too numerous to list here. It is sufficient to say that there is coverage of limitations from Abuse of Process through Employment Discrimination, No-Fault, and Products Liability to Wrongful Death.§ 2:2 Case evaluation—Distilling the base elements of your caseA. In generalGetting past the limitations issue—satisfying oneself that it is not too late to file suit—is only the beginning, however, because not every wrong can be righted by the legal system. In a lawyer's first contact with a potential client, it is essential to explore and evaluate whether the client has a case or a defense.NY PJI—its instructions and Comments—will be an extremely useful tool at this stage, because it describes the base elements of virtually any case that can come before a jury and it advises of relevant defenses. For this reason, NY PJI can and should be consulted prior, during, and immediately after the initial client meeting in order to determine whether there is a cause of action based on the facts stated by the client. Experts in developing case strategy have put it this way:Preliminary legal research will quickly expose the likely issues for each type of case you are likely to encounter. The quickest way to get to issues is to use the Book of Approved Jury Instructions for your jurisdiction. By their very nature, jury instructions must list the elements of proof for any particular case. Focus strongly on the jury instruction relating to damages and liability.Martin L. Dean, Ann Kemp, | at 1027 to 1032 (2018).Like so much of the research appearing in NY PJI, the set's treatment of limitations issues does not necessarily appear in the NY PJI Table of Contents. One must consult the Index under either “Statute of Limitations” or one of the numerous boldfaced substantive headings within that index topic. The headings are too numerous to list here. It is sufficient to say that there is coverage of limitations from Abuse of Process through Employment Discrimination, No-Fault, and Products Liability to Wrongful Death.§ 2:2 Case evaluation—Distilling the base elements of your caseA. In generalGetting past the limitations issue—satisfying oneself that it is not too late to file suit—is only the beginning, however, because not every wrong can be righted by the legal system. In a lawyer's first contact with a potential client, it is essential to explore and evaluate whether the client has a case or a defense.NY PJI—its instructions and Comments—will be an extremely useful tool at this stage, because it describes the base elements of virtually any case that can come before a jury and it advises of relevant defenses. For this reason, NY PJI can and should be consulted prior, during, and immediately after the initial client meeting in order to determine whether there is a cause of action based on the facts stated by the client. Experts in developing case strategy have put it this way:Preliminary legal research will quickly expose the likely issues for each type of case you are likely to encounter. The quickest way to get to issues is to use the Book of Approved Jury Instructions for your jurisdiction. By their very nature, jury instructions must list the elements of proof for any particular case. Focus strongly on the jury instruction relating to damages and liability.Martin L. Dean, Ann Kemp, |
| , | 51 Am Jur Trials 1, |
| Managing Litigation § 63 (emphasis | Managing Litigation § 63 (emphasis |
| added). Practice | added).♦ Practice |
| Guide: In addition to jury instructions, special verdict sheets are a quick way to generate a checklist or flow chart for the base elements of a case, or for a damages issue. NY PJI contains many special verdict forms. For further discussion of special verdicts, see § 3:3.B. NegligenceFirst-year law students learn that the base elements of negligence are: (1) the existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) a causal connection between such breach and an injury or damage to the plaintiff. A more sophisticated student might know that whether the first element has been fulfilled in any particular case—that is, whether defendant owes a duty of care to a plaintiff—“is entirely [a question] of law to be determined by the courts,” 1A | Guide: In addition to jury instructions, special verdict sheets are a quick way to generate a checklist or flow chart for the base elements of a case, or for a damages issue. NY PJI contains many special verdict forms. For further discussion of special verdicts, see § 3:3.B. NegligenceFirst-year law students learn that the base elements of negligence are: (1) the existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) a causal connection between such breach and an injury or damage to the plaintiff. A more sophisticated student might know that whether the first element has been fulfilled in any particular case—that is, whether defendant owes a duty of care to a plaintiff—“is entirely [a question] of law to be determined by the courts,” 1A |
| , | NY PJI3d 2:10, |
| at 235 (2018), citing Donohue v. Copiague Union Free School District., 64 A.D.2d 29, 407 N.Y.S.2d 874 (2d Dep't 1978), | at 235 (2018), citing Donohue v. Copiague Union Free School District., 64 A.D.2d 29, 407 N.Y.S.2d 874 (2d Dep't 1978), |
| , | judgment aff'd, |
| 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352, 1 A.L.R.4th 1133 (1979), rather than by juries, and therefore might be surprised to learn that NY PJI—a book of jury instructions—includes an extensive discussion of this question of law and others like it.Indeed, NY PJI in the aggregate is a comprehensive treatise of much of New York law.Is your personal injury case governed by a statutory standard of care? NY PJI explains not only the general rules for statutory standards—for instance, as per | 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352, 1 A.L.R.4th 1133 (1979), rather than by juries, and therefore might be surprised to learn that NY PJI—a book of jury instructions—includes an extensive discussion of this question of law and others like it.Indeed, NY PJI in the aggregate is a comprehensive treatise of much of New York law.Is your personal injury case governed by a statutory standard of care? NY PJI explains not only the general rules for statutory standards—for instance, as per |
| , | PJI 2:25, |
| that to establish liability it is necessary to show only: (a) a statutory violation; and (b) proximate cause—but also how specific standards operate. For example, NY PJI explains that the unexcused failure to observe the standard imposed by the Vehicle and Traffic Law is negligence, and that it is wrong in most instances to charge that a statutory violation is merely “evidence of negligence.” 1A NY PJI3d 2:25, at 307 (2018). In the case of a traffic accident, NY PJI tells you not only where the “rules of the road” are found (Vehicle and Traffic Law Title VII, Articles 23 to 34A, §§ 1100 to 1253), 1A | that to establish liability it is necessary to show only: (a) a statutory violation; and (b) proximate cause—but also how specific standards operate. For example, NY PJI explains that the unexcused failure to observe the standard imposed by the Vehicle and Traffic Law is negligence, and that it is wrong in most instances to charge that a statutory violation is merely “evidence of negligence.” 1A NY PJI3d 2:25, at 307 (2018). In the case of a traffic accident, NY PJI tells you not only where the “rules of the road” are found (Vehicle and Traffic Law Title VII, Articles 23 to 34A, §§ 1100 to 1253), 1A |
| , | NY PJI3d 2:75, |
| at 451 to 454 (2018), but the areas and types of vehicles to which they apply. It defines and explains the significance of “parking lot” for purposes of criminal liability (“Where the vehicle parking area is not used in conjunction with a business establishment, it is not a ‘parking lot’ within the meaning of the statute and driving in such an area while impaired by alcohol or drugs would not appear to violate VTL Article 31 . . . .”), 1A | at 451 to 454 (2018), but the areas and types of vehicles to which they apply. It defines and explains the significance of “parking lot” for purposes of criminal liability (“Where the vehicle parking area is not used in conjunction with a business establishment, it is not a ‘parking lot’ within the meaning of the statute and driving in such an area while impaired by alcohol or drugs would not appear to violate VTL Article 31 . . . .”), 1A |
| , | NY PJI3d 2:75, |
| at 451 (2018), citing case authority.Conversely, is full compliance with a statute evidence of the exercise of due care? Sometimes yes, sometimes no; NY PJI discusses the issue with full citations to authority, 1A NY PJI3d 2:25, at 304 (2018). May an expert testify concerning the meaning of a statute or regulation imposing a standard of care? NY PJI explains why the answer is “no.” 1A | at 451 (2018), citing case authority.Conversely, is full compliance with a statute evidence of the exercise of due care? Sometimes yes, sometimes no; NY PJI discusses the issue with full citations to authority, 1A NY PJI3d 2:25, at 304 (2018). May an expert testify concerning the meaning of a statute or regulation imposing a standard of care? NY PJI explains why the answer is “no.” 1A |
| , | NY PJI3d 2:25, |
| at 313 (2018).What about operating an unregistered motor vehicle? NY PJI explains why this is not “negligence per se,” and whether it's significant that the driver lacked a license. 1A | at 313 (2018).What about operating an unregistered motor vehicle? NY PJI explains why this is not “negligence per se,” and whether it's significant that the driver lacked a license. 1A |
| , | NY PJI3d 2:26, |
| at 316 (2018).Did your client have to violate one of the “rules of the road” in order to avoid an accident? There is a specific instruction on “Justifiable Non-compliance With Statute,” | at 316 (2018).Did your client have to violate one of the “rules of the road” in order to avoid an accident? There is a specific instruction on “Justifiable Non-compliance With Statute,” |
| , | PJI 2:27, |
| supported by discussion of the law on that topic, including the burden of coming forward, 1A | supported by discussion of the law on that topic, including the burden of coming forward, 1A |
| , | NY PJI3d 2:27, |
| at 320 to 321 (2018).NY PJI contains a lengthy discussion of the Dram Shop Act and liability thereunder. The discussion is not easy to find from the Table of Contents, however, because it comes under the heading | at 320 to 321 (2018).NY PJI contains a lengthy discussion of the Dram Shop Act and liability thereunder. The discussion is not easy to find from the Table of Contents, however, because it comes under the heading |
| “. | “PJI 2:28. |
| Statutory Standard of Care—Special Statutory Actions.” The sophisticated user of NY PJI—anyone reading this volume—will consult the Index and find that under the heading, “Dram Shop Act,” NY PJI discusses absolute liability, apportionment of fault, comparative negligence, and damages; questions of law and fact, and statutory standard of care, as well as wrongful death statutes of limitations.The comments in NY PJI can be finely focused on particular fact situations, one of which may be yours. For instance, the Comment following | Statutory Standard of Care—Special Statutory Actions.” The sophisticated user of NY PJI—anyone reading this volume—will consult the Index and find that under the heading, “Dram Shop Act,” NY PJI discusses absolute liability, apportionment of fault, comparative negligence, and damages; questions of law and fact, and statutory standard of care, as well as wrongful death statutes of limitations.The comments in NY PJI can be finely focused on particular fact situations, one of which may be yours. For instance, the Comment following |
| PJI 2:82 |
| (“Motor Vehicle Accidents—Rear End Collisions—Negligence”) shows exactly where it was held | (“Motor Vehicle Accidents—Rear End Collisions—Negligence”) shows exactly where it was held |
| thata | that•a |
| prima facie case of negligence is established by proof that a stopped car was hit in the | prima facie case of negligence is established by proof that a stopped car was hit in the |
| rear;the | rear;•the |
| rear-most driver in a chain-reaction collision is presumed responsible; | rear-most driver in a chain-reaction collision is presumed responsible; |
| andcolliding | and•colliding |
| with the rear of a stopped vehicle is negligence as a matter of law.1A | with the rear of a stopped vehicle is negligence as a matter of law.1A |
| , | NY PJI3d 2:82, |
| at 509 to 510 (2018).How many lawyers are aware that there is specific law and jury instruction on “sudden stopping”? See | at 509 to 510 (2018).How many lawyers are aware that there is specific law and jury instruction on “sudden stopping”? See |
| PJI 2:83 |
| (“Motor Vehicle Accidents—Sudden Stopping”), citing Vehicle & Traffic Law §§ 1163(c) and | (“Motor Vehicle Accidents—Sudden Stopping”), citing Vehicle & Traffic Law §§ 1163(c) and |
| 1164 |
| and several cases. 1A | and several cases. 1A |
| , | NY PJI3d 2:83, |
| at 517 (2018). What is the effect if the defendant failed to signal, or if the defendant applied the brakes at the same time the drivers in front of him did so? The discussion following 2:83 cites to case authority on both of these points. 1A | at 517 (2018). What is the effect if the defendant failed to signal, or if the defendant applied the brakes at the same time the drivers in front of him did so? The discussion following 2:83 cites to case authority on both of these points. 1A |
| , | NY PJI3d 2:83, |
| at 517 to 518 (2018).These illustrations are just a sample of the valuable nuggets that often can be found through NY PJI's Index. Each of the comments is organized into logical units, but the organization is not obvious because the comments lack printed tables of contents. The sub-topics treated in each comment can be found only by using the Index in NY PJI's Index and Tables Volume, or by browsing through the comment itself.The following illustration is a table of contents you will not find in NY PJI itself; it is a compilation of the actual headings in a NY PJI comment of more than 30 pages concerning medical malpractice:Malpractice—PhysicianTable of ContentsExtrapolated from Comment at 1B | at 517 to 518 (2018).These illustrations are just a sample of the valuable nuggets that often can be found through NY PJI's Index. Each of the comments is organized into logical units, but the organization is not obvious because the comments lack printed tables of contents. The sub-topics treated in each comment can be found only by using the Index in NY PJI's Index and Tables Volume, or by browsing through the comment itself.The following illustration is a table of contents you will not find in NY PJI itself; it is a compilation of the actual headings in a NY PJI comment of more than 30 pages concerning medical malpractice:Malpractice—PhysicianTable of ContentsExtrapolated from Comment at 1B |
| , | NY PJI3d 2:150, |
| at 44 to 96 (2018)I. Elements GenerallyII. Standard of CareA. GenerallyB. Best JudgmentC. Error in JudgmentD. The Locality RuleIII. Persons Who May Be LiableIV. Physician-Patient RelationshipA. Gratuitously Provided ServicesB. Physician's Undertaking to Provide ServicesC. Medical Examinations Conducted on Referral of Employers and Insurance CarriersD. Relationship Arising from Physician's Providing Medical Advice or Consultation ServicesV. Persons to whom Duty of Care Is OwedA. Duty to General PublicB. Duty to Family Members and Others in Contact with PatientVI. Malpractice Relating to Fetuses and NewbornsA. “Wrongful Life” and “Wrongful Birth” ClaimsB. Birth DefectsC. Emotional InjuryD. SterilityE. In Utero Injuries1. Accrual of Cause of Action for In Utero InjuryF. Pre-conception TortsVII. Mental Health ProfessionalsA. Duty to Persons Other Than PatientB. Error in JudgmentVIII. Negligence in Prescribing MedicationIX. Other Specific Instances of MalpracticeX. Expert Opinion EvidenceA. When Expert Opinion is RequiredB. Who May Testify As an ExpertC. Required Content of Expert TestimonyXI. Res Ipsa LoquiturXII. CausationA. Loss of ChanceB. Delayed DiagnosisC. Effect of Patient's ConductXIII. Liability for Acts and Omissions of AnotherXIV. Liability of Employers Providing Medical CareXV. Malpractice Actions Against Governmental EntitiesXVI. Liability of Health InsurersXVII. Bars to Malpractice RecoveryXVIII. Liability for Breaches of ConfidentialityXIX. Collateral Source RuleXX. Punitive DamagesXXI. Actions for Birth-Related Neurological InjuriesC. Intentional TortsIn some intentional tort cases, the base elements may easily be found by using NY PJI's Table of Contents and the instructions themselves, because the law may be encompassed within a single instruction or set of instructions on the specific wrong. The tort of battery, for example, is covered at | at 44 to 96 (2018)I. Elements GenerallyII. Standard of CareA. GenerallyB. Best JudgmentC. Error in JudgmentD. The Locality RuleIII. Persons Who May Be LiableIV. Physician-Patient RelationshipA. Gratuitously Provided ServicesB. Physician's Undertaking to Provide ServicesC. Medical Examinations Conducted on Referral of Employers and Insurance CarriersD. Relationship Arising from Physician's Providing Medical Advice or Consultation ServicesV. Persons to whom Duty of Care Is OwedA. Duty to General PublicB. Duty to Family Members and Others in Contact with PatientVI. Malpractice Relating to Fetuses and NewbornsA. “Wrongful Life” and “Wrongful Birth” ClaimsB. Birth DefectsC. Emotional InjuryD. SterilityE. In Utero Injuries1. Accrual of Cause of Action for In Utero InjuryF. Pre-conception TortsVII. Mental Health ProfessionalsA. Duty to Persons Other Than PatientB. Error in JudgmentVIII. Negligence in Prescribing MedicationIX. Other Specific Instances of MalpracticeX. Expert Opinion EvidenceA. When Expert Opinion is RequiredB. Who May Testify As an ExpertC. Required Content of Expert TestimonyXI. Res Ipsa LoquiturXII. CausationA. Loss of ChanceB. Delayed DiagnosisC. Effect of Patient's ConductXIII. Liability for Acts and Omissions of AnotherXIV. Liability of Employers Providing Medical CareXV. Malpractice Actions Against Governmental EntitiesXVI. Liability of Health InsurersXVII. Bars to Malpractice RecoveryXVIII. Liability for Breaches of ConfidentialityXIX. Collateral Source RuleXX. Punitive DamagesXXI. Actions for Birth-Related Neurological InjuriesC. Intentional TortsIn some intentional tort cases, the base elements may easily be found by using NY PJI's Table of Contents and the instructions themselves, because the law may be encompassed within a single instruction or set of instructions on the specific wrong. The tort of battery, for example, is covered at |
| , | PJI 3:3, |
| and assault is covered at | and assault is covered at |
| .From | PJI 3:2.From |
| reading | reading |
| , | PJI 3:2, one |
| learns that an assault is the intentional placing of another person in apprehension of imminent harmful or offensive contact, and that a defendant is liable for assault when he intentionally causes another person to become concerned that the defendant is about to cause a harmful or offensive bodily contact.However, the instruction itself, | learns that an assault is the intentional placing of another person in apprehension of imminent harmful or offensive contact, and that a defendant is liable for assault when he intentionally causes another person to become concerned that the defendant is about to cause a harmful or offensive bodily contact.However, the instruction itself, |
| , | PJI 3:2, |
| could serve as a study outline for a bar exam, because in reading it one learns that the defendant:(a) must have the real or apparent ability to bring about that harmful or offensive bodily contact; and(b) must make some menacing act or gesture, beyond threatening language, that causes the plaintiff to believe that a harmful or offensive bodily contact is about to occur, although actual contact is unnecessary.The ensuing commentary makes the finer points, among others, that the “apprehension” required for assault is not the same as “fear,” that the defendant need not be angry, and that, under the case law, pointing an unloaded gun is an assault if the person at whom it is pointed is not aware that it is unloaded; and that expert medical evidence is not required to prove that an alleged assault was the cause of a plaintiff's alleged emotional distress where jurors are able to draw their own conclusions about causation from their own knowledge or experience. 2A | could serve as a study outline for a bar exam, because in reading it one learns that the defendant:(a) must have the real or apparent ability to bring about that harmful or offensive bodily contact; and(b) must make some menacing act or gesture, beyond threatening language, that causes the plaintiff to believe that a harmful or offensive bodily contact is about to occur, although actual contact is unnecessary.The ensuing commentary makes the finer points, among others, that the “apprehension” required for assault is not the same as “fear,” that the defendant need not be angry, and that, under the case law, pointing an unloaded gun is an assault if the person at whom it is pointed is not aware that it is unloaded; and that expert medical evidence is not required to prove that an alleged assault was the cause of a plaintiff's alleged emotional distress where jurors are able to draw their own conclusions about causation from their own knowledge or experience. 2A |
| NY PJI2d 3:2 |
| at 5 to 8 (2018).Likewise, the NY PJI discussion of battery is concentrated at a single instruction, | at 5 to 8 (2018).Likewise, the NY PJI discussion of battery is concentrated at a single instruction, |
| . | PJI 3:3. |
| However, the Commentary is more extensive than the bare-bones instruction, extending over more than 10 pages with dozens of case citations, building on the fundamental principle that in order to make out a prima facie claim of battery, “plaintiff must establish that there was a bodily contact, that the contact was harmful or offensive, and that the defendant intended to make the contact without the plaintiff's consent.” 2A | However, the Commentary is more extensive than the bare-bones instruction, extending over more than 10 pages with dozens of case citations, building on the fundamental principle that in order to make out a prima facie claim of battery, “plaintiff must establish that there was a bodily contact, that the contact was harmful or offensive, and that the defendant intended to make the contact without the plaintiff's consent.” 2A |
| NY PJI2d 3:3 |
| at 11 (2018). The discussion at 2A NY PJI2d 3:3, at 10 to 21 (2018), explains, among other | at 11 (2018). The discussion at 2A NY PJI2d 3:3, at 10 to 21 (2018), explains, among other |
| thingsthe | things•the |
| effect of a prior criminal | effect of a prior criminal |
| conviction;the | conviction;•the |
| effect of probable cause to make an arrest (when the claim is against a police officer); | effect of probable cause to make an arrest (when the claim is against a police officer); |
| andwhether | and•whether |
| parties such as labor unions can be liable.Headings | parties such as labor unions can be liable.Headings |
| include:DamagesMitigation | include:•Damages•Mitigation |
| of | of |
| DamagesPunitive DamagesStatute | Damages•Punitive Damages•Statute |
| of LimitationsD. Contract and Other WrongsNY PJI is not just for tort lawyers. Divisions 4 through 10 in Volume 2 cover contracts, divorce, landlord and tenant disputes, will contests, mental hygiene law proceedings (guardianship proceedings), employment discrimination, and navigation | of LimitationsD. Contract and Other WrongsNY PJI is not just for tort lawyers. Divisions 4 through 10 in Volume 2 cover contracts, divorce, landlord and tenant disputes, will contests, mental hygiene law proceedings (guardianship proceedings), employment discrimination, and navigation |
| law. Practice | law.♦ Practice |
| Guide: New Article 10 of the Mental Hygiene Law, effective in 2007, concerning treatment of recidivist sex offenders, is covered with extensive comment in recently-added subdivision C of Division 8, entitled, “Involuntary Retention of Dangerous Sex Offenders Requiring Confinement.” See 2B NY PJI2d 8:8, at 944 to 993 (2018).The general instruction for a breach of contract action for damages—PJI 4:1 (“Contracts—Elements”)—describes what is needed to establish the existence of a contract and is followed by a cite-stocked research comment, 2B | Guide: New Article 10 of the Mental Hygiene Law, effective in 2007, concerning treatment of recidivist sex offenders, is covered with extensive comment in recently-added subdivision C of Division 8, entitled, “Involuntary Retention of Dangerous Sex Offenders Requiring Confinement.” See 2B NY PJI2d 8:8, at 944 to 993 (2018).The general instruction for a breach of contract action for damages—PJI 4:1 (“Contracts—Elements”)—describes what is needed to establish the existence of a contract and is followed by a cite-stocked research comment, 2B |
| , | NY PJI2d 4:1, |
| at 2 to 145 (2018), on requirements and show-stoppers in various forms of contract actions, starting with the “elements of breach of contract,” and ending with Statutory Notice of Claim. (The outline of this Comment is set forth in the Appendix to Chapter 12 of this book.) Equally informative are the two comments before and after PJI 9:1 (“Employment Discrimination—Circumstantial Evidence”). The first of these, 2B | at 2 to 145 (2018), on requirements and show-stoppers in various forms of contract actions, starting with the “elements of breach of contract,” and ending with Statutory Notice of Claim. (The outline of this Comment is set forth in the Appendix to Chapter 12 of this book.) Equally informative are the two comments before and after PJI 9:1 (“Employment Discrimination—Circumstantial Evidence”). The first of these, 2B |
| , | NY PJI2d 9:1, |
| at 995 to 1033 (2018), is an Introductory Statement expounding the law of Employment Discrimination for New York State, organized under these headings:I.New York State Human Rights LawA.General PrinciplesB.Scope of Coverage1.Covered Employees2.Covered Employers3.Successor Liability4.Liability of Co-employees and Other Individuals in the Workplace5.Claims Arising Out of Relationships Other Than That of Employer-Employee6.Geographic ScopeC.Enforcement Procedures1.Election of Remedies2.Arbitration of Employment Discrimination Claims3.Contract Provisions Modifying Employees' Rights4.Preclusive Effect of Employee Grievance ProceedingsD.Theories of Actionable Employment Discrimination1.Facial Discrimination Claims2.Disparate Treatment Claims3.Disparate Impact Claims4.Pattern-or-Practice Discrimination5.Mixed Motive Cases6.Harassment Claimsa)Quid Pro Quo Sexual Harassmentb)Hostile Environment(1)Constructive Dischargec)Employer's Liability for Harassment by Employees(1)Employer's Defenses7.Retaliation Claims8.Religious Discrimination Claims9.Claims of Discrimination Based on Military StatusE.Remedies1.Administrative Remedies2.Compensation for Monetary Loss3.Compensation for Mental Anguish4.Punitive Damages5.Interest and Attorney's FeesF.Statute of Limitations1.Applicable Limitations Period2.Accrual and Tolling3.Continuing Violations4.Notice of ClaimG.First Amendment Considerations—The Ministerial Exception(There is a second part of this Comment addressing specifically the New York City Human Rights Law.)The second comment, 2B | at 995 to 1033 (2018), is an Introductory Statement expounding the law of Employment Discrimination for New York State, organized under these headings:I.New York State Human Rights LawA.General PrinciplesB.Scope of Coverage1.Covered Employees2.Covered Employers3.Successor Liability4.Liability of Co-employees and Other Individuals in the Workplace5.Claims Arising Out of Relationships Other Than That of Employer-Employee6.Geographic ScopeC.Enforcement Procedures1.Election of Remedies2.Arbitration of Employment Discrimination Claims3.Contract Provisions Modifying Employees' Rights4.Preclusive Effect of Employee Grievance ProceedingsD.Theories of Actionable Employment Discrimination1.Facial Discrimination Claims2.Disparate Treatment Claims3.Disparate Impact Claims4.Pattern-or-Practice Discrimination5.Mixed Motive Cases6.Harassment Claimsa)Quid Pro Quo Sexual Harassmentb)Hostile Environment(1)Constructive Dischargec)Employer's Liability for Harassment by Employees(1)Employer's Defenses7.Retaliation Claims8.Religious Discrimination Claims9.Claims of Discrimination Based on Military StatusE.Remedies1.Administrative Remedies2.Compensation for Monetary Loss3.Compensation for Mental Anguish4.Punitive Damages5.Interest and Attorney's FeesF.Statute of Limitations1.Applicable Limitations Period2.Accrual and Tolling3.Continuing Violations4.Notice of ClaimG.First Amendment Considerations—The Ministerial Exception(There is a second part of this Comment addressing specifically the New York City Human Rights Law.)The second comment, 2B |
| , | NY PJI2d 9:1, |
| at 1050 to 1068 (2018), addresses the classic shifting of burdens (known to practitioners as the “McDonnell-Douglas” test) in employment discrimination cases:1.First Stage: Plaintiff's Prima Facie Case 2.Second Stage: Defendant's Proffered Reason3.Third Stage: Pretext This discussion is followed by more specific treatment | at 1050 to 1068 (2018), addresses the classic shifting of burdens (known to practitioners as the “McDonnell-Douglas” test) in employment discrimination cases:1.First Stage: Plaintiff's Prima Facie Case 2.Second Stage: Defendant's Proffered Reason3.Third Stage: Pretext This discussion is followed by more specific treatment |
| of:Sex | of:•Sex |
| Discrimination | Discrimination |
| Claims;Housing | Claims;•Housing |
| Discrimination; | Discrimination; |
| andAge | and•Age |
| Discrimination Claims2B | Discrimination Claims2B |
| , | NY PJI2d 9:1, |
| at 1060 to 1068 (2018).Hostile work environment claims under the Human Rights Law are covered by PJI | at 1060 to 1068 (2018).Hostile work environment claims under the Human Rights Law are covered by PJI |
| , | PJI 9:5, |
| setting forth the elements to be proved, | setting forth the elements to be proved, |
| , | PJI 9:5.1, |
| covering damages, and a special verdict form | covering damages, and a special verdict form |
| PJI 9:5 |
| SV. Commentary on the wrong, including discussion of sexual harassment and constructive discharge, is interwoven into the editorial treatment of the pattern charges.Grasping the base elements of a case is the first step in transforming early contact with a client or potential client into a potential suit or defense. The samples above represent just a small taste of the detailed discussion of substantive legal issues contained in NY PJI but not always apparent from the book's title or its table of contents.§ 2:3 Case evaluation—Quality and availability of evidenceA. In general—evidence of what?Once the base elements have been distilled and understood, the next logical step is to translate the abstract structure of the suit or defense into something that can be presented to a court through testimony and other evidence—an exercise best performed at the earliest possible stage, because even if “the facts” support a claim or defense, getting those facts before a judge or jury may prove to be complicated or burdensome and may make a case that is winnable in theory a long shot in practical terms. NY PJI can be extremely useful in this effort too.One may manage such case evaluation by using a chart or spreadsheet like this—the shaded areas show where NY PJI will be helpful:ElementProofCommentActionElement 1Witness 1Proper foundation for Exhibit A? Exhibit AWill W #2 be available at trial?ElementProofCommentAction Exhibit BWho has the burden here?Witness 2Witness 3Element 2Witness 4Must be “clear and convincing”Exhibit CIs witness 4 willing to testify?Exhibit DPossible hearsay problem with W #6.Witness 5W #5 may lie about a tangential matterWitness 6Element 3Witness 7Is this expert qualified?Exhibit EAre there any inferences or presumptions in our favor?Exhibit FExhibit GJudicial NoticeGeneral damagesWitness 1Do we need expert testimony to show causation?Witness 8Witness 9Punitive damagesWitness 1What conduct if any supports punitives?Witness 5Attorney's feesWitness 10Are fees recoverable?This could be converted to a spreadsheet/database in the following format:Element of Claim or DefenseWitnessExhibitComment/CautionActionElement 1—Who has theburden?Element 101Element 101AProper foundation?Element 101BElement 102Available at trial?Element 103Element 1—Must be “clear and convincing”Element 104Willing to testify?Element of Claim orDefenseWitnessExhibitComment/CautionActionElement 104CElement 205May lie about atangential matterElement 205DElement 206Possible hearsay problem with W #6.Element 3—Any favorable inferences or presumptions?Element 307Is this expertqualified?Element 307EElement 307FElement 307GElement 307Judicial NoticeGeneraldamages—Do we need expert testimony to show causation?General damages0101HGeneral damages08General damages09Punitives—What conduct if any supports punitives?Punitives01Punitives05Attorney's feesAre fees recoverable?Attorney's fees10Attorney's fees10ISuch a table could easily be reorganized by Witness to facilitate the generation of task lists for each witness:Element of Claim or DefenseWitnessExhibitComment/CautionActionElement 1—Who has theburden?Element 2—Must be “clear and convincing”Element of Claim orDefenseWitnessExhibitComment/CautionActionElement 3—Any favorableinferences orpresumptions?Generaldamages—Do we need expert testimony to show causation?Punitives—What conduct if any supports punitives?Attorney's feesAre feesrecoverable?Element 101Element101AProper foundation?Element 101BGeneraldamages0101HPunitives01Element 102Available at trial?Element 103Element 204Willing to testify?Element 204CElement 205May lie about a tangential matterElement 205DPunitives05Element 206Possible hearsay problem with W #6.Element 307Is this expertqualified?Element 307EElement 307FElement 307GElement 307Judicial NoticeGeneraldamages08Generaldamages09Attorney's fees10Attorney's | SV. Commentary on the wrong, including discussion of sexual harassment and constructive discharge, is interwoven into the editorial treatment of the pattern charges.Grasping the base elements of a case is the first step in transforming early contact with a client or potential client into a potential suit or defense. The samples above represent just a small taste of the detailed discussion of substantive legal issues contained in NY PJI but not always apparent from the book's title or its table of contents.§ 2:3 Case evaluation—Quality and availability of evidenceA. In general—evidence of what?Once the base elements have been distilled and understood, the next logical step is to translate the abstract structure of the suit or defense into something that can be presented to a court through testimony and other evidence—an exercise best performed at the earliest possible stage, because even if “the facts” support a claim or defense, getting those facts before a judge or jury may prove to be complicated or burdensome and may make a case that is winnable in theory a long shot in practical terms. NY PJI can be extremely useful in this effort too.One may manage such case evaluation by using a chart or spreadsheet like this—the shaded areas show where NY PJI will be helpful:ElementProofCommentActionElement 1Witness 1Proper foundation for Exhibit A? Exhibit AWill W #2 be available at trial?ElementProofCommentAction Exhibit BWho has the burden here?Witness 2Witness 3Element 2Witness 4Must be “clear and convincing”Exhibit CIs witness 4 willing to testify?Exhibit DPossible hearsay problem with W #6.Witness 5W #5 may lie about a tangential matterWitness 6Element 3Witness 7Is this expert qualified?Exhibit EAre there any inferences or presumptions in our favor?Exhibit FExhibit GJudicial NoticeGeneral damagesWitness 1Do we need expert testimony to show causation?Witness 8Witness 9Punitive damagesWitness 1What conduct if any supports punitives?Witness 5Attorney's feesWitness 10Are fees recoverable?This could be converted to a spreadsheet/database in the following format:Element of Claim or DefenseWitnessExhibitComment/CautionActionElement 1—Who has theburden?Element 101Element 101AProper foundation?Element 101BElement 102Available at trial?Element 103Element 1—Must be “clear and convincing”Element 104Willing to testify?Element of Claim orDefenseWitnessExhibitComment/CautionActionElement 104CElement 205May lie about atangential matterElement 205DElement 206Possible hearsay problem with W #6.Element 3—Any favorable inferences or presumptions?Element 307Is this expertqualified?Element 307EElement 307FElement 307GElement 307Judicial NoticeGeneraldamages—Do we need expert testimony to show causation?General damages0101HGeneral damages08General damages09Punitives—What conduct if any supports punitives?Punitives01Punitives05Attorney's feesAre fees recoverable?Attorney's fees10Attorney's fees10ISuch a table could easily be reorganized by Witness to facilitate the generation of task lists for each witness:Element of Claim or DefenseWitnessExhibitComment/CautionActionElement 1—Who has theburden?Element 2—Must be “clear and convincing”Element of Claim orDefenseWitnessExhibitComment/CautionActionElement 3—Any favorableinferences orpresumptions?Generaldamages—Do we need expert testimony to show causation?Punitives—What conduct if any supports punitives?Attorney's feesAre feesrecoverable?Element 101Element101AProper foundation?Element 101BGeneraldamages0101HPunitives01Element 102Available at trial?Element 103Element 204Willing to testify?Element 204CElement 205May lie about a tangential matterElement 205DPunitives05Element 206Possible hearsay problem with W #6.Element 307Is this expertqualified?Element 307EElement 307FElement 307GElement 307Judicial NoticeGeneraldamages08Generaldamages09Attorney's fees10Attorney's |
| fees10I Practice | fees10I♦ Practice |
| guide: Case management software, such as West Case Notebook, may be useful in developing such spreadsheets but is not essential.In short, NY PJI can be the cornerstone of a case evaluation project that amounts to an advance peak at the trial notebook. In addition to generating the base elements of the claim or defense, sophisticated users of NY PJI will deploy it to evaluate available evidence and answer questions concerning presumptions and inferences. Good answers to those types of questions will help determine whether the claim or defense is viable in court and if so will naturally lead to a task list of items that need further investigation or discovery.Let's develop this with some examples. Suppose your client Tiffany Green invested in ABC company that had been audited by XYZ Accountants. Your client lost all of her investment because, she says, XYZ overstated ABC's net worth by $30 million, making the company appear solvent when it was not. After the initial consultation, you consult NY PJI. You look in the index, under Misrepresentation, or Fraud, or Accountants. Very quickly, under the ACCOUNTANTS heading, you encounter the following headings:Audit (this index)Expert testimony, attorney's feesFraud and deceitMalpractice, Accountant Malpractice (this index)Negligent misrepresentationServices Rendered, Action For (this index)“Fraud and deceit” sounds relevant, and so do “Negligent misrepresentation.” and “Malpractice.” Just to make sure, you want to check out the entries under “Audit” as well, since whatever happened was certainly based on XYZ's audit of ABC. Holding on to your place under “Accountants,” you turn to “Audit” and see the following entries:Accountant malpracticeFraud, scienterNegligent misrepresentationYou know you are on the right track because your research has reached the point of redundancy—you have been referred to “Fraud” and “Negligent misrepresentation” twice, even though that's not where you started. Your instinct tells you these are your two possible claims, but just to make sure you check out instructions that pertain to “Accountant malpractice,” even though you have doubts about whether this would apply to your client, who was not a client of the accounting firm.Keeping in mind that you are going to return to “Fraud” and “Negligent Misrepresentation” because they seem right on point, you nonetheless go to volume 1B to rule out malpractice. You go to page 649 to check out the index references to PJI 2:154. This is the actual substantive instruction concerning “Malpractice—Accountant.” You read | guide: Case management software, such as West Case Notebook, may be useful in developing such spreadsheets but is not essential.In short, NY PJI can be the cornerstone of a case evaluation project that amounts to an advance peak at the trial notebook. In addition to generating the base elements of the claim or defense, sophisticated users of NY PJI will deploy it to evaluate available evidence and answer questions concerning presumptions and inferences. Good answers to those types of questions will help determine whether the claim or defense is viable in court and if so will naturally lead to a task list of items that need further investigation or discovery.Let's develop this with some examples. Suppose your client Tiffany Green invested in ABC company that had been audited by XYZ Accountants. Your client lost all of her investment because, she says, XYZ overstated ABC's net worth by $30 million, making the company appear solvent when it was not. After the initial consultation, you consult NY PJI. You look in the index, under Misrepresentation, or Fraud, or Accountants. Very quickly, under the ACCOUNTANTS heading, you encounter the following headings:Audit (this index)Expert testimony, attorney's feesFraud and deceitMalpractice, Accountant Malpractice (this index)Negligent misrepresentationServices Rendered, Action For (this index)“Fraud and deceit” sounds relevant, and so do “Negligent misrepresentation.” and “Malpractice.” Just to make sure, you want to check out the entries under “Audit” as well, since whatever happened was certainly based on XYZ's audit of ABC. Holding on to your place under “Accountants,” you turn to “Audit” and see the following entries:Accountant malpracticeFraud, scienterNegligent misrepresentationYou know you are on the right track because your research has reached the point of redundancy—you have been referred to “Fraud” and “Negligent misrepresentation” twice, even though that's not where you started. Your instinct tells you these are your two possible claims, but just to make sure you check out instructions that pertain to “Accountant malpractice,” even though you have doubts about whether this would apply to your client, who was not a client of the accounting firm.Keeping in mind that you are going to return to “Fraud” and “Negligent Misrepresentation” because they seem right on point, you nonetheless go to volume 1B to rule out malpractice. You go to page 649 to check out the index references to PJI 2:154. This is the actual substantive instruction concerning “Malpractice—Accountant.” You read |
| :A | PJI 2:154:A |
| (certified public, public) accountant who undertakes to examine the books and audit the accounts of a client does not guarantee the correctness of the accounts. (He, she, it) undertakes to use such skill and care in the performance of the work as a reasonably skillful and diligent (certified public, public) accountant would use under the same circumstances. (He, she, it) is not responsible for mere error of judgment but if (he, she, it) fails to make an investigation that would ordinarily be made by a reasonably skillful accountant, or if, in making an investigation, fails to use the care that a reasonably skillful and diligent accountant would use under the circumstances, (he, she, it) is liable for any loss that could reasonably have been anticipated at the time (he, she, it) was hired.This looks extremely relevant—if your client is a “client” of the accounting firm, which she is not, at least at first blush; she's just an investor. So you look at the ensuing Comment for some enlightenment. You find it in the second paragraph at 1B NY PJI3d 2:154, at 172 (2018):This charge is applicable only where there is a direct professional relationship between the accountant and the client. In order for a party who is not in privity with accountants to impose liability for negligence in the preparation of financial reports, it must be alleged and proved that the accountants were aware of a particular purpose for which the reports were to be employed and of the intent that a known party would rely on the reports, and the knowledge of the accountants must be evinced by some conduct linking them to the party bringing suit, Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 493, 493 NYS2d 435, 483 NE2d 110; Ambassador Factors v Kandel & Co., 215 AD2d 305, 626 NYS2d 803. An alternate theory of recovery against an accounting practice is misrepresentation, | (certified public, public) accountant who undertakes to examine the books and audit the accounts of a client does not guarantee the correctness of the accounts. (He, she, it) undertakes to use such skill and care in the performance of the work as a reasonably skillful and diligent (certified public, public) accountant would use under the same circumstances. (He, she, it) is not responsible for mere error of judgment but if (he, she, it) fails to make an investigation that would ordinarily be made by a reasonably skillful accountant, or if, in making an investigation, fails to use the care that a reasonably skillful and diligent accountant would use under the circumstances, (he, she, it) is liable for any loss that could reasonably have been anticipated at the time (he, she, it) was hired.This looks extremely relevant—if your client is a “client” of the accounting firm, which she is not, at least at first blush; she's just an investor. So you look at the ensuing Comment for some enlightenment. You find it in the second paragraph at 1B NY PJI3d 2:154, at 172 (2018):This charge is applicable only where there is a direct professional relationship between the accountant and the client. In order for a party who is not in privity with accountants to impose liability for negligence in the preparation of financial reports, it must be alleged and proved that the accountants were aware of a particular purpose for which the reports were to be employed and of the intent that a known party would rely on the reports, and the knowledge of the accountants must be evinced by some conduct linking them to the party bringing suit, Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 493, 493 NYS2d 435, 483 NE2d 110; Ambassador Factors v Kandel & Co., 215 AD2d 305, 626 NYS2d 803. An alternate theory of recovery against an accounting practice is misrepresentation, |
| Ambassador Factors v Kandel & Co., supra. |
| As to the liability of an accountant to third persons for negligent misrepresentation, see | As to the liability of an accountant to third persons for negligent misrepresentation, see |
| .Now | PJI 3:21.Now |
| things are beginning to fall into place. According to the cases cited in the Comment, it's not necessary that your client have been a “client” of XYZ Accountants in the ordinary sense. Certainly accountants know that their statements are used by investors generally, but it appears that in order to file a malpractice action (and you're still not sure you will want to do this—you're just investigating and evaluating) the XYZ firm must have been “aware. . .of the intent that a known party [your client] would rely on the reports.” This is a concept worth noting, and you do so; at a minimum, you note the NY PJI reference in your notebook. At best, you make a note (electronically or otherwise) of the two paragraphs above and draw special attention to the phrase, “aware. . .of the intent that a known party [your client] would rely on the reports.”In order to prevail on a malpractice claim against XYZ, you will need evidence of this fact. You don't recall your client mentioning anything that would support such awareness on the part of the accountants, so you will go back to the client and ask more questions. It may be that the witness who could give the best testimony concerning the accountants' awareness that your client would rely on the accountants' report is an insider who would be reluctant to testify to anything that would harm the accountants. Perhaps at this point your notes look like this:Research—Green v XYZ1. Malpractice action against XYZ?See | things are beginning to fall into place. According to the cases cited in the Comment, it's not necessary that your client have been a “client” of XYZ Accountants in the ordinary sense. Certainly accountants know that their statements are used by investors generally, but it appears that in order to file a malpractice action (and you're still not sure you will want to do this—you're just investigating and evaluating) the XYZ firm must have been “aware. . .of the intent that a known party [your client] would rely on the reports.” This is a concept worth noting, and you do so; at a minimum, you note the NY PJI reference in your notebook. At best, you make a note (electronically or otherwise) of the two paragraphs above and draw special attention to the phrase, “aware. . .of the intent that a known party [your client] would rely on the reports.”In order to prevail on a malpractice claim against XYZ, you will need evidence of this fact. You don't recall your client mentioning anything that would support such awareness on the part of the accountants, so you will go back to the client and ask more questions. It may be that the witness who could give the best testimony concerning the accountants' awareness that your client would rely on the accountants' report is an insider who would be reluctant to testify to anything that would harm the accountants. Perhaps at this point your notes look like this:Research—Green v XYZ1. Malpractice action against XYZ?See |
| PJI 2:154 |
| and Comment. . .Need to show Δ was “aware of intent that II would rely on report in making investment.”Contact client for additional information; witnesses, documents, etc. So, having expected to “rule out” a malpractice action, you have found that you may have a bona fide claim under that theory. You just need more information.You are now about ready to return to your research trail and investigate other headings you found in NY PJI's Index—Negligent Misrepresentation and Fraud and Deceit. First, however, you have noticed that the Comment you just read under | and Comment. . .Need to show Δ was “aware of intent that II would rely on report in making investment.”Contact client for additional information; witnesses, documents, etc. So, having expected to “rule out” a malpractice action, you have found that you may have a bona fide claim under that theory. You just need more information.You are now about ready to return to your research trail and investigate other headings you found in NY PJI's Index—Negligent Misrepresentation and Fraud and Deceit. First, however, you have noticed that the Comment you just read under |
| PJI 2:154 |
| referred to another Instruction that looked extremely pertinent: “As to the liability of an accountant to third persons for negligent misrepresentation, see | referred to another Instruction that looked extremely pertinent: “As to the liability of an accountant to third persons for negligent misrepresentation, see |
| .” | PJI 3:21.” |
| You believe that would be the same section you have already found in the Index under “Accountants,” sub-heading “Negligent misrepresentation.” Sure enough, the boldface entry there says “Com 3:21 (V2A p 234, 236–237).” Again, you have achieved redundancy in your research; you are seeing the same reference, | You believe that would be the same section you have already found in the Index under “Accountants,” sub-heading “Negligent misrepresentation.” Sure enough, the boldface entry there says “Com 3:21 (V2A p 234, 236–237).” Again, you have achieved redundancy in your research; you are seeing the same reference, |
| , | PJI 3:21, for |
| the second time; you can be assured you are on the right track; and you know from the Index entry that there will be several pages of Commentary in addition to an instruction at | the second time; you can be assured you are on the right track; and you know from the Index entry that there will be several pages of Commentary in addition to an instruction at |
| .Turning | PJI 3:21.Turning |
| to | to |
| , | PJI 3:21, |
| “Negligent Misrepresentation,” you see that it is directly on point. You will want to read, analyze, and perhaps annotate the instruction itself, and mine the ensuing Comment for all it's worth. First, the | “Negligent Misrepresentation,” you see that it is directly on point. You will want to read, analyze, and perhaps annotate the instruction itself, and mine the ensuing Comment for all it's worth. First, the |
| instruction:. | instruction:PJI 3:21. |
| Negligent MisrepresentationAs you have heard, the plaintiff AB seeks to recover the damages that (he, she, it) claims were caused by (his, her, its) reliance on incorrect statement(s) that were negligently made by the defendant CD. Specifically, AB claims [state plaintiff's claim(s)]. CD denies [set forth elements of plaintiff's claim(s) that defendant denies] and contends [state defendant's contentions].Where a person makes a statement that (he, she, it) knows or should know will be relied upon by another, that person is under a duty to the other person to take reasonable care that the statement is correct. Reasonable care means that degree of care that a reasonably prudent person would use under the same circumstances. When a person takes an action or makes a decision in reliance on an incorrect statement and the reliance was reasonable, that person is entitled to recover the damages (he, she, it) sustained as a result.To recover, AB has the burden of proving, by a preponderance of the evidence, that (1) CD stated [set forth statement(s) that plaintiff claims were made]; (2) the statement was incorrect; (3) CD failed to use reasonable care to ensure that the statement was correct; (4) AB (heard, read) CD's statement; (5) CD knew or a reasonable person in CD's position would have known that AB would rely on the statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; (6) AB relied on CD's statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; (7) AB's reliance on CD's statement was reasonable; and (8) as a result of (his, her, its) reliance, AB suffered damage.You will find for CD and proceed no further [state where appropriate: on this claim] if you decide that (1) CD did not state [set forth statement(s) that plaintiff claims were made]; or (2) the statement was correct; or (3) CD used reasonable care to ensure that the statement was correct; or (4) AB did not (hear, read) CD's statement; or (5) CD did not know and a reasonable person in CD's position would not have known that AB would rely on the statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; or (6) AB did not rely on CD's statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; or (7) AB's reliance on CD's statement was not reasonable; or (8) AB did not suffer damage as a result of (his, her, its) reliance on CD's statement.On the other hand, you will find for AB if you decide that (1) CD did state [set forth statement(s) that plaintiff claims were made]; and (2) CD's statement was incorrect; and (3) CD failed to use reasonable care to ensure that the statement was correct; and (4) AB (heard, read) CD's statement; and (5) CD knew or a reasonable person in CD's position would have known that AB would rely on the statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; and (6) AB relied on CD's statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; and (7) AB's reliance on CD's statement was reasonable; and (8) AB suffered damage as a result of (his, her, its) reliance on CD's statement. If you have found for AB, you will proceed to determine AB's damages.In deciding the amount of AB's damages, you must award (him, her, it) [state as appropriate: the amount equal to the difference (he, she, it) paid, [where supported by evidence] plus interest, and the value of what AB acquired.Consistent with the general elements of negligence—duty, breach of duty, causation (1A | Negligent MisrepresentationAs you have heard, the plaintiff AB seeks to recover the damages that (he, she, it) claims were caused by (his, her, its) reliance on incorrect statement(s) that were negligently made by the defendant CD. Specifically, AB claims [state plaintiff's claim(s)]. CD denies [set forth elements of plaintiff's claim(s) that defendant denies] and contends [state defendant's contentions].Where a person makes a statement that (he, she, it) knows or should know will be relied upon by another, that person is under a duty to the other person to take reasonable care that the statement is correct. Reasonable care means that degree of care that a reasonably prudent person would use under the same circumstances. When a person takes an action or makes a decision in reliance on an incorrect statement and the reliance was reasonable, that person is entitled to recover the damages (he, she, it) sustained as a result.To recover, AB has the burden of proving, by a preponderance of the evidence, that (1) CD stated [set forth statement(s) that plaintiff claims were made]; (2) the statement was incorrect; (3) CD failed to use reasonable care to ensure that the statement was correct; (4) AB (heard, read) CD's statement; (5) CD knew or a reasonable person in CD's position would have known that AB would rely on the statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; (6) AB relied on CD's statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; (7) AB's reliance on CD's statement was reasonable; and (8) as a result of (his, her, its) reliance, AB suffered damage.You will find for CD and proceed no further [state where appropriate: on this claim] if you decide that (1) CD did not state [set forth statement(s) that plaintiff claims were made]; or (2) the statement was correct; or (3) CD used reasonable care to ensure that the statement was correct; or (4) AB did not (hear, read) CD's statement; or (5) CD did not know and a reasonable person in CD's position would not have known that AB would rely on the statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; or (6) AB did not rely on CD's statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; or (7) AB's reliance on CD's statement was not reasonable; or (8) AB did not suffer damage as a result of (his, her, its) reliance on CD's statement.On the other hand, you will find for AB if you decide that (1) CD did state [set forth statement(s) that plaintiff claims were made]; and (2) CD's statement was incorrect; and (3) CD failed to use reasonable care to ensure that the statement was correct; and (4) AB (heard, read) CD's statement; and (5) CD knew or a reasonable person in CD's position would have known that AB would rely on the statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; and (6) AB relied on CD's statement in [state action that plaintiff took or decision plaintiff made in alleged reliance on the statement]; and (7) AB's reliance on CD's statement was reasonable; and (8) AB suffered damage as a result of (his, her, its) reliance on CD's statement. If you have found for AB, you will proceed to determine AB's damages.In deciding the amount of AB's damages, you must award (him, her, it) [state as appropriate: the amount equal to the difference (he, she, it) paid, [where supported by evidence] plus interest, and the value of what AB acquired.Consistent with the general elements of negligence—duty, breach of duty, causation (1A |
| , | NY PJI3d 2:10, |
| at 235 to 246 (2018))—the first substantive paragraph of the instruction states what is necessary for a duty flowing from the defendants to the plaintiff to arise. Although duty is said to be purely a question of law (1A | at 235 to 246 (2018))—the first substantive paragraph of the instruction states what is necessary for a duty flowing from the defendants to the plaintiff to arise. Although duty is said to be purely a question of law (1A |
| NY PJI3d 2:10 |
| at 235 (2018)) and you see that your instruction, | at 235 (2018)) and you see that your instruction, |
| PJI 3:21 |
| “assumes that the Court has already determined as a matter of law that plaintiff has alleged sufficient facts to show the requisite relationship between plaintiff and defendant” (2A | “assumes that the Court has already determined as a matter of law that plaintiff has alleged sufficient facts to show the requisite relationship between plaintiff and defendant” (2A |
| , | NY PJI3d 3:21, |
| at 231 to 232 (2018)), showing the existence of this duty is going to require evidence. You make a note about the necessity to establish | at 231 to 232 (2018)), showing the existence of this duty is going to require evidence. You make a note about the necessity to establish |
| duty. Observation: | duty.♦ Observation: |
| Some of the required elements of | Some of the required elements of |
| —what | PJI 3:21—what |
| the “plaintiff must prove,” in the words of the instruction—are addressed to the existence of the relationship which gives rise to a legal duty. Within the Comment, it is acknowledged that although “the determination whether privity or a relationship ‘so close as to approach privity’ existed will be a question of law for the court,” it “may, in some cases, be a question for the jury.” 1B | the “plaintiff must prove,” in the words of the instruction—are addressed to the existence of the relationship which gives rise to a legal duty. Within the Comment, it is acknowledged that although “the determination whether privity or a relationship ‘so close as to approach privity’ existed will be a question of law for the court,” it “may, in some cases, be a question for the jury.” 1B |
| , | NY PJI3d 3:21, |
| at 231 to 232 (2018); and you learn that when this happens, “the court must modify the charge accordingly.” | at 231 to 232 (2018); and you learn that when this happens, “the court must modify the charge accordingly.” |
| Id. |
| However, one could argue that elements 5 and 6 of the charge in its present form already address the issue of duty: they require proof that the defendant knew that plaintiff would rely on the financial statement and proof of some conduct linking defendant to plaintiff that supports defendant's understanding of plaintiff's reliance.In any event, your note sheet now gets a new heading to cover a potential claim of negligent misrepresentation. You raise the question about duty and, from the instruction itself, you are now able to fill in what you will need to show the elements of the claim:Research—Green v XYZ1. Malpractice action against XYZ?See | However, one could argue that elements 5 and 6 of the charge in its present form already address the issue of duty: they require proof that the defendant knew that plaintiff would rely on the financial statement and proof of some conduct linking defendant to plaintiff that supports defendant's understanding of plaintiff's reliance.In any event, your note sheet now gets a new heading to cover a potential claim of negligent misrepresentation. You raise the question about duty and, from the instruction itself, you are now able to fill in what you will need to show the elements of the claim:Research—Green v XYZ1. Malpractice action against XYZ?See |
| PJI 2:154 |
| and Comment. . .Need to show Δ was “aware of intent that II would rely on report in making investment.”Contact client for additional information; witnesses, documents, etc.2. Negligent misrepresentation claim against XYZ?See | and Comment. . .Need to show Δ was “aware of intent that II would rely on report in making investment.”Contact client for additional information; witnesses, documents, etc.2. Negligent misrepresentation claim against XYZ?See |
| Duty?—a. | PJI 3:21Duty?—a. |
| ABC company retained XYZ to audit its financial records and prepare a statement. . .b. A copy of the financial statement was furnished to Greenc. XYZ knew that Green would rely on that financial statement to determine the amount she would “lend” to [or invest in?] ABC. . .d. XYZ did something linking it to Green supporting XYZ's understanding of Green's reliance;e. The financial statement exaggerated the financial strength of ABC.f. The exaggeration resulted from XYZ's failure to use reasonable care in performing its audit in accordance with generally accepted accounting practices.g. Green relied on the statement in lending money to [investing in?] ABC.h. As a result of Green's reliance she suffered a loss.Having found the elements of a potential negligent misrepresentation claim, you tap the research and explanation the Committee and Reporters have provided in the Comment, 2A NY PJI3d 3:21, at 231 to 242 (2018). You notice that the instruction is based on a Court of Appeals decision, Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110 (1985), and that “Credit Alliance” appears to have become part of the jargon in this area, so you take down the citation and make a note to read Credit Alliance.Perhaps you will mark your place in NY PJI and read the | ABC company retained XYZ to audit its financial records and prepare a statement. . .b. A copy of the financial statement was furnished to Greenc. XYZ knew that Green would rely on that financial statement to determine the amount she would “lend” to [or invest in?] ABC. . .d. XYZ did something linking it to Green supporting XYZ's understanding of Green's reliance;e. The financial statement exaggerated the financial strength of ABC.f. The exaggeration resulted from XYZ's failure to use reasonable care in performing its audit in accordance with generally accepted accounting practices.g. Green relied on the statement in lending money to [investing in?] ABC.h. As a result of Green's reliance she suffered a loss.Having found the elements of a potential negligent misrepresentation claim, you tap the research and explanation the Committee and Reporters have provided in the Comment, 2A NY PJI3d 3:21, at 231 to 242 (2018). You notice that the instruction is based on a Court of Appeals decision, Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110 (1985), and that “Credit Alliance” appears to have become part of the jargon in this area, so you take down the citation and make a note to read Credit Alliance.Perhaps you will mark your place in NY PJI and read the |
| Credit Alliance |
| case now. Whenever you decide to read the case, on retrieving it in Westlaw, you will find under “Related Topics” on the right of your screen, “Duties and Liabilities to Third Persons—Public Accountant of Accounting Firm.” Clicking on this link will put you on the track of dozens of cases and secondary sources tlat might be of assistance to you in handling this matter.In any event, looking at the | case now. Whenever you decide to read the case, on retrieving it in Westlaw, you will find under “Related Topics” on the right of your screen, “Duties and Liabilities to Third Persons—Public Accountant of Accounting Firm.” Clicking on this link will put you on the track of dozens of cases and secondary sources tlat might be of assistance to you in handling this matter.In any event, looking at the |
| Credit Alliance |
| decision, you may read the West headnotes and notice references to the same West Key number in order to verify that the case—as understood by West's lawyer-editors—is directly relevant; and, on reading the first paragraph of the Court of Appeals' opinion, you see that you have indeed struck gold. Judge Jasen says:The critical issue common to these two appeals is whether an accountant may be held liable, absent privity of contract, to a party who relies to his detriment upon a negligently prepared financial report and, if so, within what limits does that liability extend.Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 541, 493 N.Y.S.2d 435, 483 N.E.2d 110 (1985), | decision, you may read the West headnotes and notice references to the same West Key number in order to verify that the case—as understood by West's lawyer-editors—is directly relevant; and, on reading the first paragraph of the Court of Appeals' opinion, you see that you have indeed struck gold. Judge Jasen says:The critical issue common to these two appeals is whether an accountant may be held liable, absent privity of contract, to a party who relies to his detriment upon a negligently prepared financial report and, if so, within what limits does that liability extend.Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 541, 493 N.Y.S.2d 435, 483 N.E.2d 110 (1985), |
| , | order amended, |
| 66 N.Y.2d 812, 498 N.Y.S.2d 362, 489 N.E.2d 249 (1985). On reading further, you not only verify that three of the elements stated in | 66 N.Y.2d 812, 498 N.Y.S.2d 362, 489 N.E.2d 249 (1985). On reading further, you not only verify that three of the elements stated in |
| PJI 2:230 |
| are taken directly from the opinion (“(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that party or parties' reliance. . . .” | are taken directly from the opinion (“(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that party or parties' reliance. . . .” |
| ); | 65 NY2d at 551); |
| more important, you are able discern from the opinion what particular facts and evidence were deemed critical in applying those principles. Drawing from Part III of the Court's opinion, | more important, you are able discern from the opinion what particular facts and evidence were deemed critical in applying those principles. Drawing from Part III of the Court's opinion, |
| , | 65 NY2d at 553–554, |
| you are able to generate the following:NEGLIGENT MISREPRESENTATION—FACTS/EVIDENCEFrom | you are able to generate the following:NEGLIGENT MISREPRESENTATION—FACTS/EVIDENCEFrom |
| ,,discussed | Credit Alliance Corp. v. Arthur Andersen,65 NY2d 536 (1985),discussed |
| at 2A | at 2A |
| , | NY PJI3d 3:21, |
| at 231 (2018)Plaintiff winsPlaintiff loses1. Accountants were well aware that a primary, if not the exclusive, end and aim of auditing its client was to provide plaintiff with the financial information it required.1. Though it was alleged that accountant specifically knew, should have known or were on notice that plaintiffs were being shown the reports by the client, in order to induce their reliance thereon, there was no adequate allegation of either a particular purpose for the reports' preparation or the prerequisite conduct on the part of the accountant. 2. The parties remained in direct communication, both orally and in writing, and, indeed, met together throughout the course of the plaintiff's lending relationship with the client for the very purpose of discussing the client's financial condition and the client's need for the accountants' valuation. 2. No claim was made that the accountant was being employed to prepare the reports with the particular purpose of inducing the plaintiff's reliance in mind. 3. The accountants made repeated representations personally to representatives of the plaintiff, on these occasions, concerning the value of the client's assets.3. There was no allegation that the accountant had any direct dealings with plaintiffs, had specifically agreed with the client to prepare the report for plaintiffs' use or according to plaintiffs' requirements, or had specifically agreed with the client to provide plaintiffs with a copy or actually did so. 4. The relationship thus created between the parties was the practical equivalent of privity because the parties' direct communications and personal meetings resulted in a nexus between them sufficiently approaching privity. 4. There was no allegation of any word or action on the part of the accountant directed to plaintiffs, or anything contained in the accountant's retainer agreement with the client which provided the necessary link between them.If the facts in the two appeals considered in the | at 231 (2018)Plaintiff winsPlaintiff loses1. Accountants were well aware that a primary, if not the exclusive, end and aim of auditing its client was to provide plaintiff with the financial information it required.1. Though it was alleged that accountant specifically knew, should have known or were on notice that plaintiffs were being shown the reports by the client, in order to induce their reliance thereon, there was no adequate allegation of either a particular purpose for the reports' preparation or the prerequisite conduct on the part of the accountant. 2. The parties remained in direct communication, both orally and in writing, and, indeed, met together throughout the course of the plaintiff's lending relationship with the client for the very purpose of discussing the client's financial condition and the client's need for the accountants' valuation. 2. No claim was made that the accountant was being employed to prepare the reports with the particular purpose of inducing the plaintiff's reliance in mind. 3. The accountants made repeated representations personally to representatives of the plaintiff, on these occasions, concerning the value of the client's assets.3. There was no allegation that the accountant had any direct dealings with plaintiffs, had specifically agreed with the client to prepare the report for plaintiffs' use or according to plaintiffs' requirements, or had specifically agreed with the client to provide plaintiffs with a copy or actually did so. 4. The relationship thus created between the parties was the practical equivalent of privity because the parties' direct communications and personal meetings resulted in a nexus between them sufficiently approaching privity. 4. There was no allegation of any word or action on the part of the accountant directed to plaintiffs, or anything contained in the accountant's retainer agreement with the client which provided the necessary link between them.If the facts in the two appeals considered in the |
| Credit Alliance |
| case are close to yours, your research is finished. If not, you have an abundance of research leads to the case closest to your own. In any event you keep reading the NY PJI Comment, 2A NY PJI3d 3:21, at 231 to 242 (2018), and in doing so you get even closer. Having noticed that both | case are close to yours, your research is finished. If not, you have an abundance of research leads to the case closest to your own. In any event you keep reading the NY PJI Comment, 2A NY PJI3d 3:21, at 231 to 242 (2018), and in doing so you get even closer. Having noticed that both |
| PJI 3:21 |
| itself and the Credit Alliance case are geared toward plaintiffs who are lenders, whereas your client is an investor, you may have begun to wonder whether you have missed something. In reading the Comment, however, you soon come across the statement:[A] claim for negligent misrepresentation was sufficiently pled where there were allegations that (1) the defendant accountants knew or should have known that their work for a joint venture was intended to be relied upon by the limited partners, and (2) the circumstances made it apparent that the facts provided by the promoters of the venture to the accountants were false.2A | itself and the Credit Alliance case are geared toward plaintiffs who are lenders, whereas your client is an investor, you may have begun to wonder whether you have missed something. In reading the Comment, however, you soon come across the statement:[A] claim for negligent misrepresentation was sufficiently pled where there were allegations that (1) the defendant accountants knew or should have known that their work for a joint venture was intended to be relied upon by the limited partners, and (2) the circumstances made it apparent that the facts provided by the promoters of the venture to the accountants were false.2A |
| , | NY PJI3d 3:21, |
| at 236 (2018), citing Abbott v. Herzfeld & Rubin, P.C., 202 A.D.2d 351, 609 N.Y.S.2d 230 (1st Dep't 1994). Taking a quick look at this case, you see that the court distinguished between the limited partners' claims concerning pre-investment representations and those concerning post-investment representations, and you are able to make another note:NEGLIGENT MISREPRESENTATION TO INVESTORSFrom | at 236 (2018), citing Abbott v. Herzfeld & Rubin, P.C., 202 A.D.2d 351, 609 N.Y.S.2d 230 (1st Dep't 1994). Taking a quick look at this case, you see that the court distinguished between the limited partners' claims concerning pre-investment representations and those concerning post-investment representations, and you are able to make another note:NEGLIGENT MISREPRESENTATION TO INVESTORSFrom |
| ,cited | Abbott v Herzfeld & Rubin, P.C.202 AD2d 351 (1st Dept. 1994),cited |
| and discussed at 1B | and discussed at 1B |
| , | NY PJI3d 3:21, |
| at 236 (2018)Pre-investment representationsPost-investment representationsPlaintiff must show that accountants were aware of these particular investors as opposed to a more amorphous class of potential investors.Plaintiff prevails where the complaint sufficiently alleges (a) that accountants knew or should have known that reliance by the limited partners was the very purpose of the work it was performing for the joint venture, and (b) the existence of circumstances that rendered or should have made the falsity of facts provided by the promoters “obvious” or at least shown the truth of those facts to be grossly doubtful.You now have a good idea of what types of facts and evidence will be needed to support a potential claim by Ms. Green for negligent misrepresentation against the XYZ accounting firm. You start marking up the notes you have made already.1 You are getting ready for further factual evaluation of your case, and, assuming the case remains worthwhile, you have established a direction and checklist for trial preparation. How much more research you will have to do depends on how closely Ms. Green's case resembles the cases you have already discovered from your few minutes of research in NY PJI. If more research is called for, you have these | at 236 (2018)Pre-investment representationsPost-investment representationsPlaintiff must show that accountants were aware of these particular investors as opposed to a more amorphous class of potential investors.Plaintiff prevails where the complaint sufficiently alleges (a) that accountants knew or should have known that reliance by the limited partners was the very purpose of the work it was performing for the joint venture, and (b) the existence of circumstances that rendered or should have made the falsity of facts provided by the promoters “obvious” or at least shown the truth of those facts to be grossly doubtful.You now have a good idea of what types of facts and evidence will be needed to support a potential claim by Ms. Green for negligent misrepresentation against the XYZ accounting firm. You start marking up the notes you have made already.1 You are getting ready for further factual evaluation of your case, and, assuming the case remains worthwhile, you have established a direction and checklist for trial preparation. How much more research you will have to do depends on how closely Ms. Green's case resembles the cases you have already discovered from your few minutes of research in NY PJI. If more research is called for, you have these |
| leads:A | leads:•A |
| treatise-type discussion of your claim with dozens of cases in the NY PJI | treatise-type discussion of your claim with dozens of cases in the NY PJI |
| Comment;An | Comment;•An |
| ALR annotation directly on point with 30 New York | ALR annotation directly on point with 30 New York |
| cases;An | cases;•An |
| Am Jur Proof of Facts article directly on | Am Jur Proof of Facts article directly on |
| point.A | point.•A |
| West Key number directly on point.Finally, you start the same NY PJI-based process for your third potential claim, fraud, returning to the ACCOUNTANTS index heading. There, you see the following:ACCOUNTANTS * * * Fraud and deceit justifiable reliance, Com 3:20 (V2A p198)malpractice, Com 2:154 (V1B p172)scienter, Com 3:20 (V2A p194)Only two NY PJI instructions are referenced here, and you have already consulted one of them: | West Key number directly on point.Finally, you start the same NY PJI-based process for your third potential claim, fraud, returning to the ACCOUNTANTS index heading. There, you see the following:ACCOUNTANTS * * * Fraud and deceit justifiable reliance, Com 3:20 (V2A p198)malpractice, Com 2:154 (V1B p172)scienter, Com 3:20 (V2A p194)Only two NY PJI instructions are referenced here, and you have already consulted one of them: |
| , | PJI 2:154, |
| concerning malpractice. Quickly checking the malpractice reference just in case, you turn to page 172 of 1B | concerning malpractice. Quickly checking the malpractice reference just in case, you turn to page 172 of 1B |
| NY PJI3d 2:154 |
| (2018), and you find that the only sentence referring to fraud or deceit is the following: “An alternate theory of recovery against an accounting practice is misrepresentation. . . .” In other words, fraud and deceit are beyond the scope of | (2018), and you find that the only sentence referring to fraud or deceit is the following: “An alternate theory of recovery against an accounting practice is misrepresentation. . . .” In other words, fraud and deceit are beyond the scope of |
| , | PJI 2:154, |
| just as you had expected.With the Index still open to “Accountants,” you turn to the Volume 2 references to learn more about your client's possible claims. In the Commentary to | just as you had expected.With the Index still open to “Accountants,” you turn to the Volume 2 references to learn more about your client's possible claims. In the Commentary to |
| , | PJI 3:20, |
| “Intentional Torts—Fraud and Deceit,” 2A | “Intentional Torts—Fraud and Deceit,” 2A |
| , | NY PJI2d 3:20, |
| at 229 (2018), you have found another research gold mine in the form of a comment on fraud and deceit, citing dozens of cases and covering the following:Comment Following | at 229 (2018), you have found another research gold mine in the form of a comment on fraud and deceit, citing dozens of cases and covering the following:Comment Following |
| NY PJI 3:20 |
| (“Fraud and Deceit”)(2A | (“Fraud and Deceit”)(2A |
| , | NY PJI2d 3:20, |
| at 171 to 229 (2018))Table of Contents (not set forth in NY PJI volume)I. Elements of FraudA. Representation of a Material Fact1. Fact or Opinion (incl. | at 171 to 229 (2018))Table of Contents (not set forth in NY PJI volume)I. Elements of FraudA. Representation of a Material Fact1. Fact or Opinion (incl. |
| )2. | PJI 3:20.1)2. |
| Necessity of Present Intent3. Nondisclosure, Partial Disclosure and Concealment4. Duty of Disclosurea. “Special Facts” Doctrine/Superior Knowledge5. Indirect Representations6. Fraud Relating to Malpractice Actions7. Product Defects8. Miscellaneous IssuesB. FalsityC. ScienterD. Reliance1. Justifiable Reliancea. Equal Means Ruleb. Inspection of Public Recordsc. Disclaimers2. MaterialityE. InjuryF. Aiding and Abetting FraudG. Defenses1. In Pari Delicto2. RatificationH. Measure of Damages2. Punitive Damages [sic] 3. Judiciary Law § 487 [sic]II. Statute of LimitationsIII. Standard of ProofIV. Statutory Remedies There are two topics treated in this comment that you may want to consult right away: “Fraud Relating to Malpractice Actions” and “Statutory Remedies,” the first because you may have a malpractice action, the second because you are perhaps (if you are not a full-time securities litigator) concerned about the applicability or effect of state or federal statutes, such as those relating to securities fraud. At “Fraud Relating to Malpractice Actions,” 2A | Necessity of Present Intent3. Nondisclosure, Partial Disclosure and Concealment4. Duty of Disclosurea. “Special Facts” Doctrine/Superior Knowledge5. Indirect Representations6. Fraud Relating to Malpractice Actions7. Product Defects8. Miscellaneous IssuesB. FalsityC. ScienterD. Reliance1. Justifiable Reliancea. Equal Means Ruleb. Inspection of Public Recordsc. Disclaimers2. MaterialityE. InjuryF. Aiding and Abetting FraudG. Defenses1. In Pari Delicto2. RatificationH. Measure of Damages2. Punitive Damages [sic] 3. Judiciary Law § 487 [sic]II. Statute of LimitationsIII. Standard of ProofIV. Statutory Remedies There are two topics treated in this comment that you may want to consult right away: “Fraud Relating to Malpractice Actions” and “Statutory Remedies,” the first because you may have a malpractice action, the second because you are perhaps (if you are not a full-time securities litigator) concerned about the applicability or effect of state or federal statutes, such as those relating to securities fraud. At “Fraud Relating to Malpractice Actions,” 2A |
| , | NY PJI2d 3:20, |
| at 191 to 192 (2018), you find discussion of fraudulent concealment by a professional of his or her own malpractice—this is not your case, at least so far as you know now. At “Statutory Remedies,” 2A | at 191 to 192 (2018), you find discussion of fraudulent concealment by a professional of his or her own malpractice—this is not your case, at least so far as you know now. At “Statutory Remedies,” 2A |
| NY PJI2d 3:20 |
| at 219 to 226 (2018), you find discussion of consumer protection statutes (NY Gen. Bus. L §§ 349 and | at 219 to 226 (2018), you find discussion of consumer protection statutes (NY Gen. Bus. L §§ 349 and |
| , | 350, |
| concerning deceptive trade practices and false advertising)—also not your concern, at least at this point.Now you are ready to map out your fraud claim as you did with the malpractice and negligence claims. The place to start is with the instruction itself, | concerning deceptive trade practices and false advertising)—also not your concern, at least at this point.Now you are ready to map out your fraud claim as you did with the malpractice and negligence claims. The place to start is with the instruction itself, |
| . | PJI 3:20. |
| It tells you what you will have to prove:1. That XYZ made a representation of fact to Ms. Green;2. That the representation was false;3. That XYZ either:(a)knew the representation was false; or(b)made the representation recklessly without regard to whether it was true or false;4. That XYZ made the representation to induce Green to make an investment in ABC.5. That Green justifiably relied upon XYZ's representation in deciding to make an investment in ABC.6. That Green sustained damage as a result of the fraud.7. That Green's damages were $—————.As indicated by the italics above, you now have two important questions—(1) whether the accountants' statement was a “representation of fact” and (2) whether Green “justifiably relied” on this representation. Fortunately, in NY PJI, you also have a place to look for answers which will help you to evaluate your claim and the available evidence supporting it, i.e., the specific sections of the Comment (see outline above) following | It tells you what you will have to prove:1. That XYZ made a representation of fact to Ms. Green;2. That the representation was false;3. That XYZ either:(a)knew the representation was false; or(b)made the representation recklessly without regard to whether it was true or false;4. That XYZ made the representation to induce Green to make an investment in ABC.5. That Green justifiably relied upon XYZ's representation in deciding to make an investment in ABC.6. That Green sustained damage as a result of the fraud.7. That Green's damages were $—————.As indicated by the italics above, you now have two important questions—(1) whether the accountants' statement was a “representation of fact” and (2) whether Green “justifiably relied” on this representation. Fortunately, in NY PJI, you also have a place to look for answers which will help you to evaluate your claim and the available evidence supporting it, i.e., the specific sections of the Comment (see outline above) following |
| , | PJI 3:20, |
| i.e., those pertaining to “Representations of Fact vs. Statements of Opinion” (Section I.B.1. of the Comment) and “Representations That Induce a Contract” (Section I.B.2. of the Comment). You discover on reading the Comment that the “fact or opinion” issue is complex. For example, false statements of opinion may be actionable “if such opinions are not subjectively believed by the defendant at the time they are made, provided there is justifiable frereliance.” 2A | i.e., those pertaining to “Representations of Fact vs. Statements of Opinion” (Section I.B.1. of the Comment) and “Representations That Induce a Contract” (Section I.B.2. of the Comment). You discover on reading the Comment that the “fact or opinion” issue is complex. For example, false statements of opinion may be actionable “if such opinions are not subjectively believed by the defendant at the time they are made, provided there is justifiable frereliance.” 2A |
| , | NY PJI2d 3:20, |
| at 176 (2018). Moreover, “a false statement of opinion, whether of law or of fact, if misrepresented as a sincere opinion, is actionable, provided there is reasonable reliance. . . .” | at 176 (2018). Moreover, “a false statement of opinion, whether of law or of fact, if misrepresented as a sincere opinion, is actionable, provided there is reasonable reliance. . . .” |
| You | Id.You |
| still have work to do but you have found a way to evaluate your client's case. You understand the elements of various potential claims, and the types and categories of evidence you will need to find and present in order to support those claims.B. Witnesses, in generalThe evaluation of your witnesses is part of your planning and evaluation process. Even if you have already agreed to take the case, you will need to keep an open mind, to know the weaknesses of your own case or that of your opponent. You will need to identify these witnesses, take their depositions, and make decisions regarding them.You may have witnesses who are reluctant to testify; you may have witnesses who, though entirely forthcoming with respect to the facts of your claim, may be inclined to shade the truth or even lie on a closely related matter for reasons of personal embarrassment or vulnerability which may or may not be related to your client's claim. A witness may have a personal or professional stake in the litigation, or a bad memory.Conversely, perhaps you will be able to dispense entirely with the testimony of witnesses who worry you. Perhaps the other side has the burden of proof and you need not present testimony; or perhaps you will be able to take advantage of inferences or presumptions that make the testimony of such witnesses unnecessary.Your decision-making will involve weighing the costs and benefits of calling these individuals as witnesses. Among the costs or benefits will be the jury instructions that might be given, concerning either the witness himself or your side's failure to call a witness, if that is what you decide.In making decisions about witnesses, you will find that NY PJI is invaluable. Its research comments—both those on specific types of claims and those on evidentiary issues generally—tell you a great deal about presumptions and inferences that may make witnesses unnecessary, as well as the consequences of failing to call witnesses or of calling a witness whose testimony becomes questionable in some respect.The pertinent analyses may be found in the NY PJI Index under the heading “PRESUMPTIONS AND INFERENCES” as well as other headings referred to there, such as “Interested Witnesses,” and substantive headings such as “Insurance” “Premises Liability,” and “Will Contests.” The Index topic “EVIDENCE” contains two columns of entries or references, covering everything from “Admissions” through “Hearsay” and “Spoliation of Evidence” to “Theory of case.”As you browse the headings, instructions, and Comments, you find that NY PJI contains what amounts to a hidden treatise on the law of evidence and presumptions. Compare, for example, the Table of Contents of Barker and Alexander, Evidence in New York State and Federal Courts, with NY PJI's coverage as found in the NY PJI Index:EVIDENCENew York Evidence treatise Table of ContentsNY PJI Index lineChapter 1. General PrinciplesEVIDENCEChapter 2. Judicial NoticeJUDICIAL NOTICEChapter 3. Burden of Proof and PresumptionsBURDEN OF PROOF; PRESUMPTIONS AND INFERENCESChapter 4. RelevancyCIRCUMSTANTIAL EVIDENCEChapter 5. PrivilegesPRIVILEGED COMMUNICATIONSChapter 6. WitnessesWITNESSESChapter 7. Opinions and Expert TestimonyOPINION; EXPERT AND OPINION EVIDENCEChapter 8. HearsayHEARSAYChapter 9. Authentication & IdentificationAUTHENTICATION; IDENTIFICATION OR IDENTITYChapter 10. Best EvidenceBEST EVIDENCEChapter 11. Real and Demonstrative EvidencePHOTOGRAPHS; SCENE, VISIT TO; SCENE OF ACCIDENTAlthough the NY PJI comments are not a substitute for a single-volume in-depth treatise on evidence, it is obvious that NY PJI does offer a lot of information on topics, such as evidence, that one might not have expected to find in a book on jury instructions, since we tend to think of evidentiary issues as arising prior to and exclusive of issues that juries decide.Thus, continuing with the example, in which you have an interested witness, or witnesses who may have credibility issues or who may not want to or be able to appear, NY PJI contains practical guidance on all these points. In fact, concerning witnesses with credibility issues, NY PJI contains an excellent short comment on credibility of non-party witnesses in the Comment at 1A | still have work to do but you have found a way to evaluate your client's case. You understand the elements of various potential claims, and the types and categories of evidence you will need to find and present in order to support those claims.B. Witnesses, in generalThe evaluation of your witnesses is part of your planning and evaluation process. Even if you have already agreed to take the case, you will need to keep an open mind, to know the weaknesses of your own case or that of your opponent. You will need to identify these witnesses, take their depositions, and make decisions regarding them.You may have witnesses who are reluctant to testify; you may have witnesses who, though entirely forthcoming with respect to the facts of your claim, may be inclined to shade the truth or even lie on a closely related matter for reasons of personal embarrassment or vulnerability which may or may not be related to your client's claim. A witness may have a personal or professional stake in the litigation, or a bad memory.Conversely, perhaps you will be able to dispense entirely with the testimony of witnesses who worry you. Perhaps the other side has the burden of proof and you need not present testimony; or perhaps you will be able to take advantage of inferences or presumptions that make the testimony of such witnesses unnecessary.Your decision-making will involve weighing the costs and benefits of calling these individuals as witnesses. Among the costs or benefits will be the jury instructions that might be given, concerning either the witness himself or your side's failure to call a witness, if that is what you decide.In making decisions about witnesses, you will find that NY PJI is invaluable. Its research comments—both those on specific types of claims and those on evidentiary issues generally—tell you a great deal about presumptions and inferences that may make witnesses unnecessary, as well as the consequences of failing to call witnesses or of calling a witness whose testimony becomes questionable in some respect.The pertinent analyses may be found in the NY PJI Index under the heading “PRESUMPTIONS AND INFERENCES” as well as other headings referred to there, such as “Interested Witnesses,” and substantive headings such as “Insurance” “Premises Liability,” and “Will Contests.” The Index topic “EVIDENCE” contains two columns of entries or references, covering everything from “Admissions” through “Hearsay” and “Spoliation of Evidence” to “Theory of case.”As you browse the headings, instructions, and Comments, you find that NY PJI contains what amounts to a hidden treatise on the law of evidence and presumptions. Compare, for example, the Table of Contents of Barker and Alexander, Evidence in New York State and Federal Courts, with NY PJI's coverage as found in the NY PJI Index:EVIDENCENew York Evidence treatise Table of ContentsNY PJI Index lineChapter 1. General PrinciplesEVIDENCEChapter 2. Judicial NoticeJUDICIAL NOTICEChapter 3. Burden of Proof and PresumptionsBURDEN OF PROOF; PRESUMPTIONS AND INFERENCESChapter 4. RelevancyCIRCUMSTANTIAL EVIDENCEChapter 5. PrivilegesPRIVILEGED COMMUNICATIONSChapter 6. WitnessesWITNESSESChapter 7. Opinions and Expert TestimonyOPINION; EXPERT AND OPINION EVIDENCEChapter 8. HearsayHEARSAYChapter 9. Authentication & IdentificationAUTHENTICATION; IDENTIFICATION OR IDENTITYChapter 10. Best EvidenceBEST EVIDENCEChapter 11. Real and Demonstrative EvidencePHOTOGRAPHS; SCENE, VISIT TO; SCENE OF ACCIDENTAlthough the NY PJI comments are not a substitute for a single-volume in-depth treatise on evidence, it is obvious that NY PJI does offer a lot of information on topics, such as evidence, that one might not have expected to find in a book on jury instructions, since we tend to think of evidentiary issues as arising prior to and exclusive of issues that juries decide.Thus, continuing with the example, in which you have an interested witness, or witnesses who may have credibility issues or who may not want to or be able to appear, NY PJI contains practical guidance on all these points. In fact, concerning witnesses with credibility issues, NY PJI contains an excellent short comment on credibility of non-party witnesses in the Comment at 1A |
| , | NY PJI3d 1:66, |
| at 101 to 106 (2018). The comment discusses the use of prior inconsistent and consistent statements, the use of extrinsic evidence, reputational evidence, and scope of cross-examination; the “Letendre rule” (Letendre v. Hartford Acc. & Indem. Co., 21 N.Y.2d 518, 289 N.Y.S.2d 183, 236 N.E.2d 467 (1968)) supporting the admissibility of inconsistent statements by non-parties for all purposes, against a hearsay objection, and even makes a brief excursion into federal practice, and, of course, you have the standard “falsus in uno” instruction at | at 101 to 106 (2018). The comment discusses the use of prior inconsistent and consistent statements, the use of extrinsic evidence, reputational evidence, and scope of cross-examination; the “Letendre rule” (Letendre v. Hartford Acc. & Indem. Co., 21 N.Y.2d 518, 289 N.Y.S.2d 183, 236 N.E.2d 467 (1968)) supporting the admissibility of inconsistent statements by non-parties for all purposes, against a hearsay objection, and even makes a brief excursion into federal practice, and, of course, you have the standard “falsus in uno” instruction at |
| , | PJI 1:22, |
| which communicates to the jury that it may disregard all of the testimony of a witness who has willfully given false testimony “as to any material | which communicates to the jury that it may disregard all of the testimony of a witness who has willfully given false testimony “as to any material |
| fact.” Practice | fact.”♦ Practice |
| Guide: You would perhaps prefer that the court not remind the jury of your witness' credibility problem by giving the “falsus in uno” instruction even though it is only permissive in its terms; and so you are very interested in the comment that “an instruction thereon is merely advisory. . . .” 1A | Guide: You would perhaps prefer that the court not remind the jury of your witness' credibility problem by giving the “falsus in uno” instruction even though it is only permissive in its terms; and so you are very interested in the comment that “an instruction thereon is merely advisory. . . .” 1A |
| , | NY PJI3d 1:22, |
| at 48 (2018). You follow the research trail—from the Comment, | at 48 (2018). You follow the research trail—from the Comment, |
| id., |
| to Hunter, Federal Trial Handbook § 33.13, finding there a most useful statement, attributed to a 1948 federal case, that the jury “need no instruction [that they may disbelieve a witness if they think he is lying] and giving [such instruction] with respect to a particular witness accomplishes nothing except to convey to the jury the impression that the judge thinks that the witness has lied.” You go to that case (Virginian Ry. Co. v. Armentrout, 166 F.2d 400, 4 A.L.R.2d 1064 (C.C.A. 4th Cir. 1948)) and you find there a description of the instruction as “harsh” as well as a lengthy quote from Wigmore which you decide would look great in a brief from you requesting specifically that, if you call this witness, the court not give the “Falsus in uno” instruction:It may be said, once for all, that the maxim is in itself worthless, first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in | to Hunter, Federal Trial Handbook § 33.13, finding there a most useful statement, attributed to a 1948 federal case, that the jury “need no instruction [that they may disbelieve a witness if they think he is lying] and giving [such instruction] with respect to a particular witness accomplishes nothing except to convey to the jury the impression that the judge thinks that the witness has lied.” You go to that case (Virginian Ry. Co. v. Armentrout, 166 F.2d 400, 4 A.L.R.2d 1064 (C.C.A. 4th Cir. 1948)) and you find there a description of the instruction as “harsh” as well as a lengthy quote from Wigmore which you decide would look great in a brief from you requesting specifically that, if you call this witness, the court not give the “Falsus in uno” instruction:It may be said, once for all, that the maxim is in itself worthless, first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in |
| themselves., | themselves.Virginian Ry. Co. v. Armentrout 166 F.2d at 406, |
| quoting Wigmore on Evidence, 2d ed., at 449.You recall that the instructions in NY PJI as a whole are not mandatory. See “How to Use These Volumes,” 1A NY PJI3d, at xxxix (2018) (citing Feldman v. Town of Bethel, 106 A.D.2d 695, 484 N.Y.S.2d 147 (3d Dep't 1984)). You decide in this context to quote to the trial court the Committee's own cautionary statement:It is important to note that most of the pattern charges state general principles, some of which may be irrelevant to the facts of a particular case and which, in some cases, should not be stated to the jury, see | quoting Wigmore on Evidence, 2d ed., at 449.You recall that the instructions in NY PJI as a whole are not mandatory. See “How to Use These Volumes,” 1A NY PJI3d, at xxxix (2018) (citing Feldman v. Town of Bethel, 106 A.D.2d 695, 484 N.Y.S.2d 147 (3d Dep't 1984)). You decide in this context to quote to the trial court the Committee's own cautionary statement:It is important to note that most of the pattern charges state general principles, some of which may be irrelevant to the facts of a particular case and which, in some cases, should not be stated to the jury, see |
| .1A | Spadaccini v Dolan, 63 AD2d 110, 407 NYS2d 840.1A |
| NY PJI3d, at xxxix (2018). You are starting to prepare a brief in support of an expected motion not to use | NY PJI3d, at xxxix (2018). You are starting to prepare a brief in support of an expected motion not to use |
| PJI 1:22 |
| (Falsus in Uno).However, at the same time you will consider a Plan B: Avoid calling this witness with credibility problems. What will be the effect of this? You find the index heading, “FAILURE TO PRODUCE WITNESS” and you educate yourself by turning to PJI 1:75 and | (Falsus in Uno).However, at the same time you will consider a Plan B: Avoid calling this witness with credibility problems. What will be the effect of this? You find the index heading, “FAILURE TO PRODUCE WITNESS” and you educate yourself by turning to PJI 1:75 and |
| the |
| Comment following, 1A | Comment following, 1A |
| NY PJI3d 1:75 |
| at 115 to 125 (2018), which covers the following ground:“Failure to Produce Witness—In General”Table of ContentsExtrapolated from 1A | at 115 to 125 (2018), which covers the following ground:“Failure to Produce Witness—In General”Table of ContentsExtrapolated from 1A |
| , | NY PJI3d 1:75, |
| at 115 to 125 (2018)I. Missing Witness Charge; GenerallyII. Preconditions to ChargeA. MaterialityB. Control1. Relationship Between Witness and Party2. Cumulative TestimonyC. AvailabilityD. Control and Availability ComparedIII. Procedural ConsiderationsIV. Individuals Subject to InterferenceA. Parties to ActionB. Lay and Expert WitnessesV. Other ConsiderationsYou read the jury charge itself. It | at 115 to 125 (2018)I. Missing Witness Charge; GenerallyII. Preconditions to ChargeA. MaterialityB. Control1. Relationship Between Witness and Party2. Cumulative TestimonyC. AvailabilityD. Control and Availability ComparedIII. Procedural ConsiderationsIV. Individuals Subject to InterferenceA. Parties to ActionB. Lay and Expert WitnessesV. Other ConsiderationsYou read the jury charge itself. It |
| states:. | states:PJI 1:75. |
| General Instruction—Evidence—Failure to Produce Witness—In GeneralA party is not required to call any particular person as a witness. However, the failure to call a certain person as a witness may be the basis for an inference against the party not calling the witness. For example, in this case the (plaintiff, defendant) did not call AB [identify witness, e.g. treating physician, examining physician] to testify on the question of [identify issue, e.g., permanent extent of injury, causation]. (The plaintiff, defendant) (has offered the following explanation for not calling AB [summarize explanation], as a witness or has offered no explanation for not calling AB).[If explanation is offered] If you find that this explanation is reasonable, then you should not consider the failure to call AB in evaluating the evidence. If, however, you find (the explanation is not a reasonable one, no explanation has been offered) you may, although you are not required to, conclude that the testimony of AB would not support (the plaintiff's, defendant's) position on the question of [identify issue] [add if opposing party has offered evidence on the issue]: and would not contradict the evidence offered by (the plaintiff, defendant) on this question and you may, although you are not required to, draw the strongest inference against the (the plaintiff, defendant) on that question, that opposing evidence permits.This is a charge you don't want the jury to hear: “you may, although you are not required to, draw the strongest inference against the (plaintiff, defendant) on that question.” True, like the falsus in uno charge, it's only permissive, but you're not at all happy contemplating the judge telling the jury that they have permission to draw a “strong” inference against your client. In reading the NY PJI Comment, however, you notice that if the other side wants the court to give this charge, they have some work to do. In particular, there are three “preconditions:”(1)The witness' knowledge must be material to the trial;(2)The witness must be expected to give non-cumulative testimony favorable to the party against whom the charge is sought (the “control” element); and(3)The witness must be available to that party.1A | General Instruction—Evidence—Failure to Produce Witness—In GeneralA party is not required to call any particular person as a witness. However, the failure to call a certain person as a witness may be the basis for an inference against the party not calling the witness. For example, in this case the (plaintiff, defendant) did not call AB [identify witness, e.g. treating physician, examining physician] to testify on the question of [identify issue, e.g., permanent extent of injury, causation]. (The plaintiff, defendant) (has offered the following explanation for not calling AB [summarize explanation], as a witness or has offered no explanation for not calling AB).[If explanation is offered] If you find that this explanation is reasonable, then you should not consider the failure to call AB in evaluating the evidence. If, however, you find (the explanation is not a reasonable one, no explanation has been offered) you may, although you are not required to, conclude that the testimony of AB would not support (the plaintiff's, defendant's) position on the question of [identify issue] [add if opposing party has offered evidence on the issue]: and would not contradict the evidence offered by (the plaintiff, defendant) on this question and you may, although you are not required to, draw the strongest inference against the (the plaintiff, defendant) on that question, that opposing evidence permits.This is a charge you don't want the jury to hear: “you may, although you are not required to, draw the strongest inference against the (plaintiff, defendant) on that question.” True, like the falsus in uno charge, it's only permissive, but you're not at all happy contemplating the judge telling the jury that they have permission to draw a “strong” inference against your client. In reading the NY PJI Comment, however, you notice that if the other side wants the court to give this charge, they have some work to do. In particular, there are three “preconditions:”(1)The witness' knowledge must be material to the trial;(2)The witness must be expected to give non-cumulative testimony favorable to the party against whom the charge is sought (the “control” element); and(3)The witness must be available to that party.1A |
| , | NY PJI3d 1:75, |
| at 117 to 118 (2018). You look over your notes; you think the other side will have trouble showing that your witness—the one you don't want to bring in—would be expected to give testimony favorable to your client. You tentatively decide that Plan B—not calling the witness—is a decent plan—perhaps you will promote it to Plan A. You keep asking yourself whether the other side knows or could learn that the witness would be expected to testify in favor of your client.C. ExpertsNY PJI's main treatment of expert and opinion evidence is found at 1A | at 117 to 118 (2018). You look over your notes; you think the other side will have trouble showing that your witness—the one you don't want to bring in—would be expected to give testimony favorable to your client. You tentatively decide that Plan B—not calling the witness—is a decent plan—perhaps you will promote it to Plan A. You keep asking yourself whether the other side knows or could learn that the witness would be expected to testify in favor of your client.C. ExpertsNY PJI's main treatment of expert and opinion evidence is found at 1A |
| , | NY PJI3d 1:90, |
| at 155 to 196 (2018), following PJI 1:90. General Instruction—Expert Witness. The charge itself contains two key caveats which should be kept in mind by any lawyer preparing or evaluating a case for trial with an | at 155 to 196 (2018), following PJI 1:90. General Instruction—Expert Witness. The charge itself contains two key caveats which should be kept in mind by any lawyer preparing or evaluating a case for trial with an |
| expert:“You | expert:•“You |
| may reject an expert's opinion if you find the facts to be different from those which formed the basis for the | may reject an expert's opinion if you find the facts to be different from those which formed the basis for the |
| opinion.”“You | opinion.”•“You |
| may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the | may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the |
| opinion.” | opinion.”PJI 1:90 |
| (emphasis added). The first of these is your lodestar in lining up the facts for presentation to the court. Discrepancies between your facts and the expert's will knock you out of the box completely. The second point—well, you obviously want to find an expert who's well-spoken and persuasive.As is the case with other topics that might have seemed out of reach for a book of jury instructions, NY PJI's coverage of expert testimony—just in this comment, let alone in the comments on particular types of claims—is both broad and deep:Table of ContentsComment on Expert Testimony1A | (emphasis added). The first of these is your lodestar in lining up the facts for presentation to the court. Discrepancies between your facts and the expert's will knock you out of the box completely. The second point—well, you obviously want to find an expert who's well-spoken and persuasive.As is the case with other topics that might have seemed out of reach for a book of jury instructions, NY PJI's coverage of expert testimony—just in this comment, let alone in the comments on particular types of claims—is both broad and deep:Table of ContentsComment on Expert Testimony1A |
| , | NY PJI3d 1:90, |
| at 155 to 196 (2018)I. General ConsiderationsA. Scope of Expert TestimonyB. Qualifications of Expert Witness1. Witness Held Qualified2. Witness Held Not QualifiedC. Weight Accorded Expert TestimonyD. Compelled Testimony by Experts1. Parties Adversary's ExpertII. Testimony of ExpertA. In GeneralB. Cross-Examination1. In General2. Use of Learned Treatises—C. Demonstrative EvidenceD. Use of an Expert's Live Video and Deposition TestimonyIII. Basis of Expert's OpinionA. Facts Known by WitnessB. Facts in EvidenceC. Out of Court Material Derived from Witness Subject to Cross-ExaminationD. Professional Reliability ExceptionE. Admissibility of Medical and Hospital Reports as Business ReportsF. Disclosure of Basis1. At Trial2. On Summary JudgmentIV. Novel Scientific EvidenceA. BackgroundB. Application of the Frye Test in New YorkV. Specific Issues for Expert TestimonyA. CausationB. MalpracticeC. SpeedD. Accident ReconstructionE. Miscellaneous IssuesVI. Pre-trial ProcedureA. Expert Disclosure Requirements Under CPLR 3101(d)(1)1. Failure to Comply with Expert Disclosure Requirements2. Medical, Dental and Podiatric Malpractice Actions3. Commercial Division RulesB. Required Medical Disclosure in Personal Injury and Wrongful Death Actions—22 NYCRR § 202.17NY PJI's extensive discussion of pre-trial procedure, 1A NY PJI3d 1:90, at 192 to 196 (2018), with special attention to malpractice requirements, is an unexpected bonus. What about the need for expert testimony? Is it required to recover damages for pain and suffering? The answer lies in NY PJI's coverage of damages: “While causal relationship must exist, it can be established without medical testimony when the results of the negligent act are within the experience and observation of a layperson. . . .” 1B | at 155 to 196 (2018)I. General ConsiderationsA. Scope of Expert TestimonyB. Qualifications of Expert Witness1. Witness Held Qualified2. Witness Held Not QualifiedC. Weight Accorded Expert TestimonyD. Compelled Testimony by Experts1. Parties Adversary's ExpertII. Testimony of ExpertA. In GeneralB. Cross-Examination1. In General2. Use of Learned Treatises—C. Demonstrative EvidenceD. Use of an Expert's Live Video and Deposition TestimonyIII. Basis of Expert's OpinionA. Facts Known by WitnessB. Facts in EvidenceC. Out of Court Material Derived from Witness Subject to Cross-ExaminationD. Professional Reliability ExceptionE. Admissibility of Medical and Hospital Reports as Business ReportsF. Disclosure of Basis1. At Trial2. On Summary JudgmentIV. Novel Scientific EvidenceA. BackgroundB. Application of the Frye Test in New YorkV. Specific Issues for Expert TestimonyA. CausationB. MalpracticeC. SpeedD. Accident ReconstructionE. Miscellaneous IssuesVI. Pre-trial ProcedureA. Expert Disclosure Requirements Under CPLR 3101(d)(1)1. Failure to Comply with Expert Disclosure Requirements2. Medical, Dental and Podiatric Malpractice Actions3. Commercial Division RulesB. Required Medical Disclosure in Personal Injury and Wrongful Death Actions—22 NYCRR § 202.17NY PJI's extensive discussion of pre-trial procedure, 1A NY PJI3d 1:90, at 192 to 196 (2018), with special attention to malpractice requirements, is an unexpected bonus. What about the need for expert testimony? Is it required to recover damages for pain and suffering? The answer lies in NY PJI's coverage of damages: “While causal relationship must exist, it can be established without medical testimony when the results of the negligent act are within the experience and observation of a layperson. . . .” 1B |
| , | NYPJI3d 2:280, |
| at 885 (2018), referred to in the NY PJI Index under EXPERT AND OPINION EVIDENCE—Pain and suffering.D. Non-testimonial evidenceWe have observed above that the Comment on expert testimony contains a Part on “Demonstrative Exhibits” with a special instruction on the subject. Notably, the discussion and instruction themselves, however, are not limited to demonstrative evidence used with experts.Juror views of the scene of an incident are specifically treated at | at 885 (2018), referred to in the NY PJI Index under EXPERT AND OPINION EVIDENCE—Pain and suffering.D. Non-testimonial evidenceWe have observed above that the Comment on expert testimony contains a Part on “Demonstrative Exhibits” with a special instruction on the subject. Notably, the discussion and instruction themselves, however, are not limited to demonstrative evidence used with experts.Juror views of the scene of an incident are specifically treated at |
| PJI 1:104A |
| and | and |
| the |
| associated Comment, 1A | associated Comment, 1A |
| , | NY PJI3d 1:104A, |
| at 221 to 222 (2018).Statistics that can be judicially noticed are discussed at 1B NY PJI3d 2:281, at 917 (2018), as well as 1B | at 221 to 222 (2018).Statistics that can be judicially noticed are discussed at 1B NY PJI3d 2:281, at 917 (2018), as well as 1B |
| , | NY PJI3d 2:290, |
| at 948 to 949 | at 948 to 949 |
| (2018). Practice | (2018).♦ Practice |
| Guide: Actual Life Expectancy Tables (from the National Center for Health Statistics), Tables of Working Life for Men and Women (from the U.S. Department of Labor), and Present Value Tables are reprinted at 1B NY PJI3d Appendices, at 1036 to 1062 (2018). However, these are merely advisory. Although the present value tables, 1B NY PJI3d, at 1059 to 1060 (2018), are purely mathematical, you should always check to make sure you have the most current information regarding life expectancy and working life, and you should consider the use of expert testimony when you think it is needed.§ 2:4 Case evaluation—Projecting damagesKnowing what damages may be recovered is important for both attorney and client in making cost-benefit judgments about pursuing a claim or adhering to a defense. Damages in a case such as the example discussed above, involving accounting malpractice, negligent misrepresentation or fraud, may be researched by starting with the Index heading DAMAGES. One of the subheadings there, “Negligent misrepresentation,” returns you to an area of NY PJI you have already explored, the Commentary following | Guide: Actual Life Expectancy Tables (from the National Center for Health Statistics), Tables of Working Life for Men and Women (from the U.S. Department of Labor), and Present Value Tables are reprinted at 1B NY PJI3d Appendices, at 1036 to 1062 (2018). However, these are merely advisory. Although the present value tables, 1B NY PJI3d, at 1059 to 1060 (2018), are purely mathematical, you should always check to make sure you have the most current information regarding life expectancy and working life, and you should consider the use of expert testimony when you think it is needed.§ 2:4 Case evaluation—Projecting damagesKnowing what damages may be recovered is important for both attorney and client in making cost-benefit judgments about pursuing a claim or adhering to a defense. Damages in a case such as the example discussed above, involving accounting malpractice, negligent misrepresentation or fraud, may be researched by starting with the Index heading DAMAGES. One of the subheadings there, “Negligent misrepresentation,” returns you to an area of NY PJI you have already explored, the Commentary following |
| , | PJI 3:21, the |
| instruction on “Negligent Misrepresentation,” specifically, 2A | instruction on “Negligent Misrepresentation,” specifically, 2A |
| , | NY PJI3d 3:21, |
| at 239 (2018). There you find the following:Damages in a pecuniary loss case based on negligent misrepresentation are ordinarily measured by either (1) the consideration for the transaction paid plus interest less the value of what was acquired, Doyle v Chatham & Phenix Nat. Bank of City of New York, 253 NY 369, 171 NE 574 (1930); Restatement Second, Torts § 552B, or (2) by the plaintiff's out-of-pocket expenses, Johnson v State, 37 NY2d 378, 372 NYS2d 638, 334 NE2d 590 (1975). Lost profits are not recoverable in an action for negligent misrepresentation, Facie Libre Associates I, LLC v SecondMarket Holdings, Inc., 103 AD3d 565, 961 NYS2d 44 (1st Dept 2013). Perhaps you make these notes:Damages—Green v. XYZ Negligent Misrepresentation See 2A | at 239 (2018). There you find the following:Damages in a pecuniary loss case based on negligent misrepresentation are ordinarily measured by either (1) the consideration for the transaction paid plus interest less the value of what was acquired, Doyle v Chatham & Phenix Nat. Bank of City of New York, 253 NY 369, 171 NE 574 (1930); Restatement Second, Torts § 552B, or (2) by the plaintiff's out-of-pocket expenses, Johnson v State, 37 NY2d 378, 372 NYS2d 638, 334 NE2d 590 (1975). Lost profits are not recoverable in an action for negligent misrepresentation, Facie Libre Associates I, LLC v SecondMarket Holdings, Inc., 103 AD3d 565, 961 NYS2d 44 (1st Dept 2013). Perhaps you make these notes:Damages—Green v. XYZ Negligent Misrepresentation See 2A |
| 1.Consideration | NY PJI3d 3:21 1.Consideration |
| paid plus interest, less value of what was acquired; or2.Amount of increase in plaintiff's costs due to reliance on statement; or3.Out of pocket expenses.The DAMAGES heading in the Index refers to the Index coverage of “Fraud and Deceit (this index).” The “Damages” sub-heading there refers you back to both the charge and commentary at PJI 3:20, in volume 2 of NY PJI. You mark down the pages cited in the Index, and you find the charge itself, | paid plus interest, less value of what was acquired; or2.Amount of increase in plaintiff's costs due to reliance on statement; or3.Out of pocket expenses.The DAMAGES heading in the Index refers to the Index coverage of “Fraud and Deceit (this index).” The “Damages” sub-heading there refers you back to both the charge and commentary at PJI 3:20, in volume 2 of NY PJI. You mark down the pages cited in the Index, and you find the charge itself, |
| , | PJI 3:20, |
| which ends with the following: “If you find that AB did sustain damage as a result of the fraud, you must next decide the actual monetary loss sustained. [Measure of damages must reflect out of pocket rule, see Comment].” Next, still in the same comment, you find the heading “Damages” at 2A | which ends with the following: “If you find that AB did sustain damage as a result of the fraud, you must next decide the actual monetary loss sustained. [Measure of damages must reflect out of pocket rule, see Comment].” Next, still in the same comment, you find the heading “Damages” at 2A |
| , | NY PJI2d 3:20, |
| at 209 to 211 (2018), the beginning of a comment that includes what you have been looking for:A.Measure of Damages.B.Punitive Damages.Sure enough, here you find a nice exposition of the “out of pocket” rule referred to in the charge, and an explanation of how it does not compensate for loss of bargain. “[T]he out-of-pocket damages are the difference between the value of the received consideration and the value of the consideration given. . . . Neither the loss of an alternative contractual bargain nor the payment of taxes couched as consequential damages may be recovered in a fraud action where the former damages are undeterminable and speculative and recovery of the latter would put the plaintiff in a better position than it would have been but for the alleged fraud. . . .” 2A | at 209 to 211 (2018), the beginning of a comment that includes what you have been looking for:A.Measure of Damages.B.Punitive Damages.Sure enough, here you find a nice exposition of the “out of pocket” rule referred to in the charge, and an explanation of how it does not compensate for loss of bargain. “[T]he out-of-pocket damages are the difference between the value of the received consideration and the value of the consideration given. . . . Neither the loss of an alternative contractual bargain nor the payment of taxes couched as consequential damages may be recovered in a fraud action where the former damages are undeterminable and speculative and recovery of the latter would put the plaintiff in a better position than it would have been but for the alleged fraud. . . .” 2A |
| NY PJI 3d 3:20 |
| at 210 (2018) (citations omitted). As to punitive damages, the Comment at first does not seem to provide the hoped-for relief, explaining that these are not “recoverable in the ordinary fraud and deceit case, . . .but may be recovered when the fraud is gross, involves high moral culpability, and is aimed at the general public.” 2A NY PJI2d 3:20, at 211 (2018). However, as you read further you find citations to a number of cases in which punitive damages awards were upheld, and as you continue your perusal you find that punitive damages are recoverable, even in the absence of a fraud aimed at the public generally, if the defendant has committed a gross, wanton, or willful fraud or other morally culpable conduct in a sufficiently high degree. 2A | at 210 (2018) (citations omitted). As to punitive damages, the Comment at first does not seem to provide the hoped-for relief, explaining that these are not “recoverable in the ordinary fraud and deceit case, . . .but may be recovered when the fraud is gross, involves high moral culpability, and is aimed at the general public.” 2A NY PJI2d 3:20, at 211 (2018). However, as you read further you find citations to a number of cases in which punitive damages awards were upheld, and as you continue your perusal you find that punitive damages are recoverable, even in the absence of a fraud aimed at the public generally, if the defendant has committed a gross, wanton, or willful fraud or other morally culpable conduct in a sufficiently high degree. 2A |
| , | NY PJI2d 3:20, |
| at 212 (2018). You make note of this part of the comment and mark the citations for further | at 212 (2018). You make note of this part of the comment and mark the citations for further |
| research. Practice | research.♦ Practice |
| guide: NY PJI of course contains specific discussions of damages for numerous other actions in addition to those for fraud and deceit. See, for example, particular principles, sometimes embedded in lengthier discussions, such as those at:2A | guide: NY PJI of course contains specific discussions of damages for numerous other actions in addition to those for fraud and deceit. See, for example, particular principles, sometimes embedded in lengthier discussions, such as those at:2A |
| , | NY PJI2d 3:58, |
| at 620 (2018) (“Damages recoverable for misappropriation of trade secrets is the loss of profits resulting from the defendant's actual diverting of customers. . . .”);2A | at 620 (2018) (“Damages recoverable for misappropriation of trade secrets is the loss of profits resulting from the defendant's actual diverting of customers. . . .”);2A |
| , | NY PJI2d 3:23, |
| at 249 (2018) (“[A] private plaintiff can recover presumed or punitive damages without proving constitutional malice if the defamatory statement does not involve matters of public concern.”);2B | at 249 (2018) (“[A] private plaintiff can recover presumed or punitive damages without proving constitutional malice if the defamatory statement does not involve matters of public concern.”);2B |
| , | NY PJI2d 9:1, |
| at 1026 (2018) (In a Human Rights Law action, “[a]n award of compensatory damages for mental anguish may be based solely on the complainant's testimony. . . . The award must be reasonably related to the wrongdoing and comparable to other awards for similar injuries. . . .”);1B | at 1026 (2018) (In a Human Rights Law action, “[a]n award of compensatory damages for mental anguish may be based solely on the complainant's testimony. . . . The award must be reasonably related to the wrongdoing and comparable to other awards for similar injuries. . . .”);1B |
| , | NY PJI3d 2:282, |
| at 920 (2018) (In a personal injury case where there was a pre-existing injury, “[t]he plaintiff can recover only for damage caused by aggravation of the pre-existing condition, not the condition itself.”);1A | at 920 (2018) (In a personal injury case where there was a pre-existing injury, “[t]he plaintiff can recover only for damage caused by aggravation of the pre-existing condition, not the condition itself.”);1A |
| , | NY PJI3d 2:142, |
| at 842 (2018) (“Consequential damages, including damages for personal injuries, may be recovered in an action for breach of warranty. . . .”).For general principles relating to punitive damages, see PJI 2:278 and | at 842 (2018) (“Consequential damages, including damages for personal injuries, may be recovered in an action for breach of warranty. . . .”).For general principles relating to punitive damages, see PJI 2:278 and |
| the |
| comment at 1B | comment at 1B |
| , | PJI3d 2:278, |
| at 885 to 906 (2018), organized under the following topical headings:Punitive Damages Due Process ConsiderationsGuidepostsEvidence in MitigationPurpose and Applicable ActionsRequirements for Award of Punitive DamagesDefamation CasesInsurance CasesStatutory Punitive DamagesPunitive Damages Against Governmental EntitiesCorporate Liability for Punitive DamagesAutomobile AccidentsMedical MalpracticeOther ActionsStandard of ProofPleading RequirementsBifurcationContribution and IndemnificationConflict of LawsAdministrative AgenciesInterestSpecial Verdict§ 2:5 Drafting pleadingsThe CPLR requires that statements in a pleading be “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” | at 885 to 906 (2018), organized under the following topical headings:Punitive Damages Due Process ConsiderationsGuidepostsEvidence in MitigationPurpose and Applicable ActionsRequirements for Award of Punitive DamagesDefamation CasesInsurance CasesStatutory Punitive DamagesPunitive Damages Against Governmental EntitiesCorporate Liability for Punitive DamagesAutomobile AccidentsMedical MalpracticeOther ActionsStandard of ProofPleading RequirementsBifurcationContribution and IndemnificationConflict of LawsAdministrative AgenciesInterestSpecial Verdict§ 2:5 Drafting pleadingsThe CPLR requires that statements in a pleading be “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” |
| . | CPLR 3013. |
| A pleading that meets these two requirements will defeat a motion to dismiss for failure to state a claim under | A pleading that meets these two requirements will defeat a motion to dismiss for failure to state a claim under |
| . | CPLR 3211(a)(7). |
| Siegel, New York Practice (5th) § 208.We have seen above the extent to which NY PJI aids in case evaluation by identifying the material elements of numerous causes of action. A case should not be taken unless it constitutes a viable cause of action. If you are satisfied in evaluating the case that a claim can be stated, preparing the complaint should be a simple matter of reorganizing your notes. In other words, in a properly researched and evaluated case, the preparation of a pleading including these elements is a natural result of the process of evaluating the case at its outset.Thus, an effectively-used NY PJI, coupled with your intake factual investigation, gives you what you need to draw a complaint that should discourage or, if necessary, withstand a motion to dismiss. It is a short trip indeed from identifying the base elements of a cause of action to inserting them into a complaint.For example, from the discussion of employment discrimination above (see § 2:2, D. Contract and Other Wrongs), drawn from 2B | Siegel, New York Practice (5th) § 208.We have seen above the extent to which NY PJI aids in case evaluation by identifying the material elements of numerous causes of action. A case should not be taken unless it constitutes a viable cause of action. If you are satisfied in evaluating the case that a claim can be stated, preparing the complaint should be a simple matter of reorganizing your notes. In other words, in a properly researched and evaluated case, the preparation of a pleading including these elements is a natural result of the process of evaluating the case at its outset.Thus, an effectively-used NY PJI, coupled with your intake factual investigation, gives you what you need to draw a complaint that should discourage or, if necessary, withstand a motion to dismiss. It is a short trip indeed from identifying the base elements of a cause of action to inserting them into a complaint.For example, from the discussion of employment discrimination above (see § 2:2, D. Contract and Other Wrongs), drawn from 2B |
| , | NY PJI2d 9:1, |
| at 995 to 1067 (2018), we know that the prima facie elements of a plaintiff's case are these:1.Plaintiff is a member of a protected group2.Plaintiff was qualified for the job3.Plaintiff was subject to an adverse employment decision4.The circumstances gave rise to an inference of discriminationEach of these elements should comprise a topic sentence in the complaint. If you have a preference for forms, you could use those actual words, in each case following the topic sentence with a sentence that begins with a phrase such as, “Specifically, . . .” “More specifically, . . .” or “That is, . . .” For better readability, you can tell the story as a whole before stating these elements. However, at some point, you ought to be alleging something like this:Employment Discrimination—Allegations of Complaint1. Plaintiff is a member of a protected group, i.e., African-Americans.2. Plaintiff was qualified for the job. Specifically, the posted requirements for the job were. . . .; and plaintiff met these requirements, in that. . . .3. Plaintiff was subject to an adverse employment decision. That is, plaintiff's application for the position was rejected.4. The circumstances gave rise to an inference of discrimination. Specifically, plaintiff had been told that an African-American would never be selected for the position. . . .Similarly, in an action for, say, false imprisonment, one can easily locate the basic elements of the claim in the commentary following the pattern charge on false imprisonment, 2A NY PJI2d 3:5, at 31 (2018), as follows:1.The defendant intended to confine plaintiff;2.The plaintiff was conscious of the confinement;3.The plaintiff did not consent to the confinement; and4.The confinement was not otherwise privileged.These basic elements form the heart of the essential allegations of a claim for false imprisonment as set forth at 5 Carmody-Wait 2d, § 29:229, involving a sample complaint for a business owner assaulted and confined by deputy sheriffs, where the jurisdictional, party-description, and story-telling allegations of the first 15 paragraphs are followed by these:AS AND FOR A SECOND CAUSE OF ACTION 16. Plaintiff repeats and realleges paragraphs 1 through 15 of [his/her] complaint and further states and alleges:17. That on or about [date of arrest], Deputy Sheriffs [name of deputy sheriff 1] and [name of deputy sheriff 2], individually and while in the course and scope of their employment with the [name of county] Sheriff's Department, and acting under authority of the County, falsely arrested and imprisoned plaintiff without warrant, authority of law or probable cause therefor.18. That the acts and conduct constituting the false arrest and false imprisonment consisted in part of the following: unlawfully and intentionally detaining and confining plaintiff against [his/her] will and without [his/her] consent; unlawfully and intentionally detaining and confining plaintiff without privilege, probable cause or valid legal process; unlawfully detaining and confining plaintiff through the unlawful arrest of plaintiff; unlawfully detaining and confining plaintiff through the use of force; unlawfully arresting plaintiff and placing plaintiff in handcuffs without reasonable cause therefor, and committing such other acts resulting in the unlawful arrest and imprisonment of plaintiff.19. That plaintiff was conscious of the false arrest and confinement.20. That as a direct, sole and proximate result of the false arrest and imprisonment, plaintiff was caused to and did sustain humiliation and embarrassment, emotional and mental distress, moral and mental degradation, indignity and disgrace, injury to personal and business reputation, inconvenience, disturbance and disruption of life, legal expenses, and loss of personal and business income.21. By reason of the foregoing, plaintiff has been injured and damaged in an amount which exceeds the jurisdiction of all lower Courts otherwise having jurisdiction.5 Carmody-Wait 2d, § 29:229 (emphasis | at 995 to 1067 (2018), we know that the prima facie elements of a plaintiff's case are these:1.Plaintiff is a member of a protected group2.Plaintiff was qualified for the job3.Plaintiff was subject to an adverse employment decision4.The circumstances gave rise to an inference of discriminationEach of these elements should comprise a topic sentence in the complaint. If you have a preference for forms, you could use those actual words, in each case following the topic sentence with a sentence that begins with a phrase such as, “Specifically, . . .” “More specifically, . . .” or “That is, . . .” For better readability, you can tell the story as a whole before stating these elements. However, at some point, you ought to be alleging something like this:Employment Discrimination—Allegations of Complaint1. Plaintiff is a member of a protected group, i.e., African-Americans.2. Plaintiff was qualified for the job. Specifically, the posted requirements for the job were. . . .; and plaintiff met these requirements, in that. . . .3. Plaintiff was subject to an adverse employment decision. That is, plaintiff's application for the position was rejected.4. The circumstances gave rise to an inference of discrimination. Specifically, plaintiff had been told that an African-American would never be selected for the position. . . .Similarly, in an action for, say, false imprisonment, one can easily locate the basic elements of the claim in the commentary following the pattern charge on false imprisonment, 2A NY PJI2d 3:5, at 31 (2018), as follows:1.The defendant intended to confine plaintiff;2.The plaintiff was conscious of the confinement;3.The plaintiff did not consent to the confinement; and4.The confinement was not otherwise privileged.These basic elements form the heart of the essential allegations of a claim for false imprisonment as set forth at 5 Carmody-Wait 2d, § 29:229, involving a sample complaint for a business owner assaulted and confined by deputy sheriffs, where the jurisdictional, party-description, and story-telling allegations of the first 15 paragraphs are followed by these:AS AND FOR A SECOND CAUSE OF ACTION 16. Plaintiff repeats and realleges paragraphs 1 through 15 of [his/her] complaint and further states and alleges:17. That on or about [date of arrest], Deputy Sheriffs [name of deputy sheriff 1] and [name of deputy sheriff 2], individually and while in the course and scope of their employment with the [name of county] Sheriff's Department, and acting under authority of the County, falsely arrested and imprisoned plaintiff without warrant, authority of law or probable cause therefor.18. That the acts and conduct constituting the false arrest and false imprisonment consisted in part of the following: unlawfully and intentionally detaining and confining plaintiff against [his/her] will and without [his/her] consent; unlawfully and intentionally detaining and confining plaintiff without privilege, probable cause or valid legal process; unlawfully detaining and confining plaintiff through the unlawful arrest of plaintiff; unlawfully detaining and confining plaintiff through the use of force; unlawfully arresting plaintiff and placing plaintiff in handcuffs without reasonable cause therefor, and committing such other acts resulting in the unlawful arrest and imprisonment of plaintiff.19. That plaintiff was conscious of the false arrest and confinement.20. That as a direct, sole and proximate result of the false arrest and imprisonment, plaintiff was caused to and did sustain humiliation and embarrassment, emotional and mental distress, moral and mental degradation, indignity and disgrace, injury to personal and business reputation, inconvenience, disturbance and disruption of life, legal expenses, and loss of personal and business income.21. By reason of the foregoing, plaintiff has been injured and damaged in an amount which exceeds the jurisdiction of all lower Courts otherwise having jurisdiction.5 Carmody-Wait 2d, § 29:229 (emphasis |
| added). Practice | added).♦ Practice |
| Guide: The “merchant's privilege” to detain a shoplifter is the subject of an expanded commentary and a new pattern charge | Guide: The “merchant's privilege” to detain a shoplifter is the subject of an expanded commentary and a new pattern charge |
| () | (NY PJI 3:5.1) |
| and Special Verdict Form (NY PJI 3:5.1 SV) at 2A | and Special Verdict Form (NY PJI 3:5.1 SV) at 2A |
| , | NY PJI 3:5, |
| at 34–35 (2017).To sum up: a good complaint or counterclaim consists of allegations that: (1) establish jurisdiction and venue; (2) identify and describe the parties; (3) tell the plaintiff's story; and (4) relate that story to the essential elements of a legal cause of action. NY PJI is an invaluable tool for task number 4 because it sets forth the base elements of so many causes of | at 34–35 (2017).To sum up: a good complaint or counterclaim consists of allegations that: (1) establish jurisdiction and venue; (2) identify and describe the parties; (3) tell the plaintiff's story; and (4) relate that story to the essential elements of a legal cause of action. NY PJI is an invaluable tool for task number 4 because it sets forth the base elements of so many causes of |
| action. Practice | action.♦ Practice |
| Guide: NY PJI can also be helpful in educating oneself concerning jurisdictional issues. See, for example, 2A | Guide: NY PJI can also be helpful in educating oneself concerning jurisdictional issues. See, for example, 2A |
| , | NY PJI2d 3:60, |
| at 679 (2018), discussing concurrent state and federal jurisdiction of constitutional torts; 2A | at 679 (2018), discussing concurrent state and federal jurisdiction of constitutional torts; 2A |
| , | NY PJI2d 3:58, |
| at 615 (2018), discussing concurrent state and federal jurisdiction in unfair competition and Lanham Act cases; 1B NY PJI3d 2:215, at 273 to 276 (2018), discussing the primary jurisdiction of the Workers' Compensation Board and how to raise such issue in a common law action; and 2B | at 615 (2018), discussing concurrent state and federal jurisdiction in unfair competition and Lanham Act cases; 1B NY PJI3d 2:215, at 273 to 276 (2018), discussing the primary jurisdiction of the Workers' Compensation Board and how to raise such issue in a common law action; and 2B |
| , | NY PJI2d 6:4, |
| at 714 to 715 (2018), and 2B | at 714 to 715 (2018), and 2B |
| , | NY PJI2d 6:5, |
| at 715 to 723 (2018), discussing jurisdiction in landlord-tenant disputes.§ 2:6 Targeting discoveryDiscovery should not be and cannot be a fishing expedition. | at 715 to 723 (2018), discussing jurisdiction in landlord-tenant disputes.§ 2:6 Targeting discoveryDiscovery should not be and cannot be a fishing expedition. |
| CPLR 3101(a) |
| limits discovery to information “material and necessary in the prosecution or defense of an action,” and it is well-settled that the issues framed by the pleadings determine the scope of discovery. Mavroudis v. State Wide Ins. Co., 102 A.D.2d 864, 477 N.Y.S.2d 45 (2d Dep't 1984). In other words, the test of materiality should be relevancy of the material to the issues pleaded. Avco Sec. Corp. of New York v. Post, 42 A.D.2d 395, 397, 348 N.Y.S.2d 409, 412, 13 U.C.C. Rep. Serv. 845 (4th Dep't 1973).When you represent a party seeking discovery, therefore, it is not only efficient but prudent to have a discovery plan that follows your pleading, whether that pleading is a complaint or an answer. As litigation management experts have put it:During the strategy phase, in the course of developing your discovery plan, its a good idea to read the relevant jury instructions for a review of the elements necessary to prove your claim or defense. Like a road map, the jury instructions for your type of case precisely describe your destination—the desired elements of proof for your case, the minimum points that must be made and backed up with evidence in order for you to get the desired verdict from a judge and jury.The jury instructions will provide essential issues which you need to prove or defend your case. These critical issues would be used to guide your discovery. If you are the plaintiff you will be trying to prove the issues as true. If acting for the defendant your goal will be to prevent the proof of these elements.M.L. Dean, A. Kemp, | limits discovery to information “material and necessary in the prosecution or defense of an action,” and it is well-settled that the issues framed by the pleadings determine the scope of discovery. Mavroudis v. State Wide Ins. Co., 102 A.D.2d 864, 477 N.Y.S.2d 45 (2d Dep't 1984). In other words, the test of materiality should be relevancy of the material to the issues pleaded. Avco Sec. Corp. of New York v. Post, 42 A.D.2d 395, 397, 348 N.Y.S.2d 409, 412, 13 U.C.C. Rep. Serv. 845 (4th Dep't 1973).When you represent a party seeking discovery, therefore, it is not only efficient but prudent to have a discovery plan that follows your pleading, whether that pleading is a complaint or an answer. As litigation management experts have put it:During the strategy phase, in the course of developing your discovery plan, its a good idea to read the relevant jury instructions for a review of the elements necessary to prove your claim or defense. Like a road map, the jury instructions for your type of case precisely describe your destination—the desired elements of proof for your case, the minimum points that must be made and backed up with evidence in order for you to get the desired verdict from a judge and jury.The jury instructions will provide essential issues which you need to prove or defend your case. These critical issues would be used to guide your discovery. If you are the plaintiff you will be trying to prove the issues as true. If acting for the defendant your goal will be to prevent the proof of these elements.M.L. Dean, A. Kemp, |
| , | Managing Litigation, 51 Am. Jur. Trials 1, |
| § 80.If you have used NY PJI to frame your complaint or defense, based on having articulated the base elements of your claim or defense as suggested above, you have in your pleadings the kernel of a trim and effective discovery program that will not be wasting your own time or that of your opponent or the court.If you have generated tables, as suggested above, correlating the expected evidence with the elements of the cause of action, you will have a table from which you can generate a discovery plan. From the table generated earlier, for example, you can fill in the “Action” column with discovery devices:Element of Claim or DefenseWitnessExhibitComment/CautionActionElement 1—Who has theburden?Element 2—Must be “clear and convincing”Element 3—Any favorable inferences or presumptions?Generaldamages—Do we need expert testimony to show causation?Punitives—What conduct if any supports punitives?Attorney's feesAre feesrecoverable?Element 101Depose Witness 01Element 101AProper foundation?DocumentRequestElement 101BDocumentRequestGeneraldamages0101HPunitives01Element 102Available at trial?Depose Witness 02Element 103Do we need Witness 03?Element 204Willing to testify?Contact first, then depose Witness 04Element 204CDocumentRequestElement 205May lie about a tangential matterDepose Witness 05Element of Claim orDefenseWitnessExhibitComment/CautionActionElement 205DDocumentRequest or elicitduringdeposition?Punitives05Element 206Possible hearsay problem with W #6.Depose Witness 6Element 307Is this expertqualified?Contact Witness 07; wait on depositionElement 307EDocumentRequest?Element 307FElement 307GDocumentRequestElement 307Judicial NoticeMotion to take judicial notice?Generaldamages08Obtain records?Generaldamages09Depose Witness 09Attorney's fees10Attorney's fees10IThus, the important task of discovery, beyond any particular tactical considerations, is that you must be prepared to present all the elements of your claim or defense and defend them against the other side's objections. If you are representing a plaintiff, you don't want to have the case dismissed on a motion for directed verdict for failure to support all of the elements of the claim. You don't want to leave one of the elements as presenting a serious question of fact concerning which you will need to argue vigorously to the jury. If you are representing a defendant, you will perhaps be happy to spend hours listening to the other side's case and then move successfully for its dismissal for failure to present evidence supporting all the needed elements, or argue that the plaintiff has failed to carry his or her burden of proof.In the example above, as a plaintiff's attorney you now have a discovery program. You will depose most of the witnesses and you know what information you need to get from each one. You will be able to go into the deposition with a checklist arising from the base elements of your cause of action. In deposing the witnesses, you will learn something about their attitude toward your client and concerns they might have about testifying in your case. You will know what documents you need and you will ask for them. You have a plan.§ 2:7 Planning for trial—How many trials?Although case evaluation, pleading and discovery may comprise a unified scheme, the trial itself may not necessarily follow that scheme. There could be different trials on different issues.Most commonly, in a personal injury case, the issue of liability may be tried separately from the issue of damages. Under CPLR 603 and | § 80.If you have used NY PJI to frame your complaint or defense, based on having articulated the base elements of your claim or defense as suggested above, you have in your pleadings the kernel of a trim and effective discovery program that will not be wasting your own time or that of your opponent or the court.If you have generated tables, as suggested above, correlating the expected evidence with the elements of the cause of action, you will have a table from which you can generate a discovery plan. From the table generated earlier, for example, you can fill in the “Action” column with discovery devices:Element of Claim or DefenseWitnessExhibitComment/CautionActionElement 1—Who has theburden?Element 2—Must be “clear and convincing”Element 3—Any favorable inferences or presumptions?Generaldamages—Do we need expert testimony to show causation?Punitives—What conduct if any supports punitives?Attorney's feesAre feesrecoverable?Element 101Depose Witness 01Element 101AProper foundation?DocumentRequestElement 101BDocumentRequestGeneraldamages0101HPunitives01Element 102Available at trial?Depose Witness 02Element 103Do we need Witness 03?Element 204Willing to testify?Contact first, then depose Witness 04Element 204CDocumentRequestElement 205May lie about a tangential matterDepose Witness 05Element of Claim orDefenseWitnessExhibitComment/CautionActionElement 205DDocumentRequest or elicitduringdeposition?Punitives05Element 206Possible hearsay problem with W #6.Depose Witness 6Element 307Is this expertqualified?Contact Witness 07; wait on depositionElement 307EDocumentRequest?Element 307FElement 307GDocumentRequestElement 307Judicial NoticeMotion to take judicial notice?Generaldamages08Obtain records?Generaldamages09Depose Witness 09Attorney's fees10Attorney's fees10IThus, the important task of discovery, beyond any particular tactical considerations, is that you must be prepared to present all the elements of your claim or defense and defend them against the other side's objections. If you are representing a plaintiff, you don't want to have the case dismissed on a motion for directed verdict for failure to support all of the elements of the claim. You don't want to leave one of the elements as presenting a serious question of fact concerning which you will need to argue vigorously to the jury. If you are representing a defendant, you will perhaps be happy to spend hours listening to the other side's case and then move successfully for its dismissal for failure to present evidence supporting all the needed elements, or argue that the plaintiff has failed to carry his or her burden of proof.In the example above, as a plaintiff's attorney you now have a discovery program. You will depose most of the witnesses and you know what information you need to get from each one. You will be able to go into the deposition with a checklist arising from the base elements of your cause of action. In deposing the witnesses, you will learn something about their attitude toward your client and concerns they might have about testifying in your case. You will know what documents you need and you will ask for them. You have a plan.§ 2:7 Planning for trial—How many trials?Although case evaluation, pleading and discovery may comprise a unified scheme, the trial itself may not necessarily follow that scheme. There could be different trials on different issues.Most commonly, in a personal injury case, the issue of liability may be tried separately from the issue of damages. Under CPLR 603 and |
| , | 4011, |
| the trial court has broad discretion to conduct separate trials of separate issues and the Uniform Rules for Trial Courts express a clear preference for bifurcated trials “in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.” 22 NYCRR § 202.42(a). “As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried and determined separately.” Loncz v. Blagrove, 254 A.D.2d 735, 678 N.Y.S.2d 560 (4th Dep't 1998).Most plaintiffs' attorneys seem to dislike bifurcation; and one learns from NY PJI that “[a] party opposing bifurcation and seeking a unified trial on the issues of liability and damages must show that the nature of the injuries have an important bearing on the issue of liability.” 1A | the trial court has broad discretion to conduct separate trials of separate issues and the Uniform Rules for Trial Courts express a clear preference for bifurcated trials “in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.” 22 NYCRR § 202.42(a). “As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried and determined separately.” Loncz v. Blagrove, 254 A.D.2d 735, 678 N.Y.S.2d 560 (4th Dep't 1998).Most plaintiffs' attorneys seem to dislike bifurcation; and one learns from NY PJI that “[a] party opposing bifurcation and seeking a unified trial on the issues of liability and damages must show that the nature of the injuries have an important bearing on the issue of liability.” 1A |
| , | PJI3d 1:2A, |
| at 33 (2018) (emphasis added) (citations omitted). Accord: Loncz v. Blagrove, 254 A.D.2d 735, 678 N.Y.S.2d 560 (4th Dep't 1998) (“An exception to [the] rule [that liability and damages should be tried separately in a negligence action] arises where plaintiff's injuries have ‘an important bearing’ on the issue of liability and are probative in determining how the incident occurred.”) (citations omitted).The very first set of charges in NY PJI is a set of pre-trial instructions consisting of an Introductory statement by the court to the jury, | at 33 (2018) (emphasis added) (citations omitted). Accord: Loncz v. Blagrove, 254 A.D.2d 735, 678 N.Y.S.2d 560 (4th Dep't 1998) (“An exception to [the] rule [that liability and damages should be tried separately in a negligence action] arises where plaintiff's injuries have ‘an important bearing’ on the issue of liability and are probative in determining how the incident occurred.”) (citations omitted).The very first set of charges in NY PJI is a set of pre-trial instructions consisting of an Introductory statement by the court to the jury, |
| , | PJI 1:1, |
| identification of the parties, | identification of the parties, |
| , | PJI 1:2, |
| and an optional statement in the event the jury is considering only the question of liability, | and an optional statement in the event the jury is considering only the question of liability, |
| . | PJI 1:2A. |
| If you are unfamiliar with what the jury will be deciding in the first stage of a bifurcated trial, the charge tells you:In this case you will decide only the question of liability, that is, which (party, parties) (is, are) responsible for the accident that brings these parties to court. You are therefore being called upon to decide only the question of negligence or fault. Should there be mention of an injury you will consider such evidence only in deciding how the accident happened and not for any other purpose.However, the exclusion of evidence of injury may not be this absolute; one learns from NY PJI commentary that “if some evidence of the injuries sustained is relevant on the issue of liability, the trial judge may allow evidence of such injuries, and give an appropriate limiting instruction when the evidence is introduced,” 1A | If you are unfamiliar with what the jury will be deciding in the first stage of a bifurcated trial, the charge tells you:In this case you will decide only the question of liability, that is, which (party, parties) (is, are) responsible for the accident that brings these parties to court. You are therefore being called upon to decide only the question of negligence or fault. Should there be mention of an injury you will consider such evidence only in deciding how the accident happened and not for any other purpose.However, the exclusion of evidence of injury may not be this absolute; one learns from NY PJI commentary that “if some evidence of the injuries sustained is relevant on the issue of liability, the trial judge may allow evidence of such injuries, and give an appropriate limiting instruction when the evidence is introduced,” 1A |
| , | NY PJI3d 1:2A, |
| at 31 (2018), and, furthermore, that “the relevance of the injuries sustained on the issue of liability may be so extensive that a full trial should be held.” | at 31 (2018), and, furthermore, that “the relevance of the injuries sustained on the issue of liability may be so extensive that a full trial should be held.” |
| Id. |
| (emphasis added) (citations omitted). The Comment goes on to recite the pertinent facts in several cases in which bifurcation was rejected.If the trial is to be bifurcated, it will be important to know whether the same jury will nonetheless hear both liability and damages, and to understand how bifurcation affects voir dire and argument; these issues are addressed at 1A | (emphasis added) (citations omitted). The Comment goes on to recite the pertinent facts in several cases in which bifurcation was rejected.If the trial is to be bifurcated, it will be important to know whether the same jury will nonetheless hear both liability and damages, and to understand how bifurcation affects voir dire and argument; these issues are addressed at 1A |
| , | NY PJI3d 1:2A, |
| at 30 to 32 | at 30 to 32 |
| (2018). View | (2018).♦ View |
| From The Bench: The issue of bifurcation is typically addressed by a motion in limine. As already noted, the Uniform Rules for Trial Courts express a strong preference for bifurcation. Whereas it was once thought to be an application which went to the sole discretion of the court, some appellate decisions have held it to be reversible error not to grant bifurcation where such a request has been made (see, e.g., Loncz v. Blagrove, 254 A.D.2d 735, 678 N.Y.S.2d 560 (4th Dep't 1998); Piccione v. Tri-Main Development, L.P., 5 A.D.3d 1086, 773 N.Y.S.2d 665 (4th Dep't 2004)).§ 2:8 Planning for trial—Openings and closingsWhile an opening statement is focused on storytelling, the climax of the story is the claim that the attorney's client should win, and why, i.e., the basis of liability. “When reciting the ‘basis’ of her theory the attorney is at the emotional peak of the opening statement.” 2 Lane Goldstein Trial Technique § 10:36 (3d ed.). It is at this point that the attorney, though avoiding a statement of the law itself and eschewing legal terminology, will summarize the facts presented in terms that will specifically support a verdict for his or her client under the instructions the jury will be given. “The law, the jury instructions and the basic sense of human justice, should all point to your client. All of that must be previewed in your opening statement, even the law. Remember, your jurors want to know what the rules are and why you are saying that that defendant or that plaintiff, should lose right away.” D. Gianna, Opening Statements § 2:1, citing G.C. Ritter, Creating Winning Trial Strategies and Graphics (American Bar Association, 2004). “After the plot is laid out—the story is told—the lawyer winds up by pointing out that all of the elements. . .were met. . . . Counsel works the legal concepts and definitions into the trial story and demonstrates that they are common sense rules that support the plaintiff's cause.” 3 ATLA's Litigating Tort Cases § 37:27.The closing argument is your final opportunity to package and present your case to the jury. It is what you hope that jury will have in mind as they listen to the court's instructions and retire for deliberations. This argument should be planned far in advance with jury instructions in mind.A key element of preparing for closing is a comprehensive outline of the closing argument. It will be the roadmap of your argument. You should start the outline early and build on it as you work up the case. Shortly before trial, you should have the outline in essentially final form, but even during the trial itself you should fine-tune the outline so it corresponds to the admitted evidence, witness testimony, jury instructions, and any special verdict form.3 ATLA's Litigating Tort Cases § 44:7. “Discuss the evidence using language consistent with the jury instructions. That way, when the jurors receive the instructions, your discussion of the facts will resonate in their minds when they are in the jury room. . . .” 3 ATLA's Litigating Tort Cases | From The Bench: The issue of bifurcation is typically addressed by a motion in limine. As already noted, the Uniform Rules for Trial Courts express a strong preference for bifurcation. Whereas it was once thought to be an application which went to the sole discretion of the court, some appellate decisions have held it to be reversible error not to grant bifurcation where such a request has been made (see, e.g., Loncz v. Blagrove, 254 A.D.2d 735, 678 N.Y.S.2d 560 (4th Dep't 1998); Piccione v. Tri-Main Development, L.P., 5 A.D.3d 1086, 773 N.Y.S.2d 665 (4th Dep't 2004)).§ 2:8 Planning for trial—Openings and closingsWhile an opening statement is focused on storytelling, the climax of the story is the claim that the attorney's client should win, and why, i.e., the basis of liability. “When reciting the ‘basis’ of her theory the attorney is at the emotional peak of the opening statement.” 2 Lane Goldstein Trial Technique § 10:36 (3d ed.). It is at this point that the attorney, though avoiding a statement of the law itself and eschewing legal terminology, will summarize the facts presented in terms that will specifically support a verdict for his or her client under the instructions the jury will be given. “The law, the jury instructions and the basic sense of human justice, should all point to your client. All of that must be previewed in your opening statement, even the law. Remember, your jurors want to know what the rules are and why you are saying that that defendant or that plaintiff, should lose right away.” D. Gianna, Opening Statements § 2:1, citing G.C. Ritter, Creating Winning Trial Strategies and Graphics (American Bar Association, 2004). “After the plot is laid out—the story is told—the lawyer winds up by pointing out that all of the elements. . .were met. . . . Counsel works the legal concepts and definitions into the trial story and demonstrates that they are common sense rules that support the plaintiff's cause.” 3 ATLA's Litigating Tort Cases § 37:27.The closing argument is your final opportunity to package and present your case to the jury. It is what you hope that jury will have in mind as they listen to the court's instructions and retire for deliberations. This argument should be planned far in advance with jury instructions in mind.A key element of preparing for closing is a comprehensive outline of the closing argument. It will be the roadmap of your argument. You should start the outline early and build on it as you work up the case. Shortly before trial, you should have the outline in essentially final form, but even during the trial itself you should fine-tune the outline so it corresponds to the admitted evidence, witness testimony, jury instructions, and any special verdict form.3 ATLA's Litigating Tort Cases § 44:7. “Discuss the evidence using language consistent with the jury instructions. That way, when the jurors receive the instructions, your discussion of the facts will resonate in their minds when they are in the jury room. . . .” 3 ATLA's Litigating Tort Cases |
| § 44:22. View | § 44:22.♦ View |
| From The Bench: In New York counsel are not permitted to discuss the law as such during an opening statement or a closing argument. Doing so will usually be met with a quick objection from opposing counsel which will likely be sustained by the Judge; never a good thing as you attempt to build credibility with the jury. Nonetheless, that is not a bar to discussing the evidence “using language consistent with the jury instructions,” which is a great idea and a proven successful technique.The terms of a jury instruction or special verdict form may even be incorporated into the argument as a visual aid. 3 ATLA's Litigating Tort Cases §§ 44:25 to 44:27. “Go over the jury instructions pertaining to general damages. Use them to show that what your client seeks is a fundamental legal right and that if the jury finds liability, they shall—not may—award damages.” 3 ATLA's Litigating Tort Cases § 44:28.In the closing argument, “[b]oth favorable and unfavorable basic instructions should be anticipated and argued.” 4 Lane Goldstein Trial Technique § 23:76 (3d ed.).In the recommended outline, the court's instructions are covered after the evidence and facts in the case have been discussed. . . . This permits counsel to “wrap up” his argument with a discussion of his legal theory and synopsis of supporting evidence. In a sense, he closes by “telling” the jury that the authority of the court and law supports his position. The court's instruction may also be covered effectively early in the argument; perhaps immediately following Introduction. This is especially true in cases where the basic law strongly favors or protects your client's rights. An early discussion of the law may create a credible and strong first impression.4 Lane Goldstein Trial Technique | From The Bench: In New York counsel are not permitted to discuss the law as such during an opening statement or a closing argument. Doing so will usually be met with a quick objection from opposing counsel which will likely be sustained by the Judge; never a good thing as you attempt to build credibility with the jury. Nonetheless, that is not a bar to discussing the evidence “using language consistent with the jury instructions,” which is a great idea and a proven successful technique.The terms of a jury instruction or special verdict form may even be incorporated into the argument as a visual aid. 3 ATLA's Litigating Tort Cases §§ 44:25 to 44:27. “Go over the jury instructions pertaining to general damages. Use them to show that what your client seeks is a fundamental legal right and that if the jury finds liability, they shall—not may—award damages.” 3 ATLA's Litigating Tort Cases § 44:28.In the closing argument, “[b]oth favorable and unfavorable basic instructions should be anticipated and argued.” 4 Lane Goldstein Trial Technique § 23:76 (3d ed.).In the recommended outline, the court's instructions are covered after the evidence and facts in the case have been discussed. . . . This permits counsel to “wrap up” his argument with a discussion of his legal theory and synopsis of supporting evidence. In a sense, he closes by “telling” the jury that the authority of the court and law supports his position. The court's instruction may also be covered effectively early in the argument; perhaps immediately following Introduction. This is especially true in cases where the basic law strongly favors or protects your client's rights. An early discussion of the law may create a credible and strong first impression.4 Lane Goldstein Trial Technique |
| § 23:78. View | § 23:78.♦ View |
| From The Bench: It is often helpful in the closing argument to acknowledge up front that counsel is not permitted to instruct the jury on the law. For example: “Members of the jury, I am not permitted to explain the law to you. That is purely and exclusively the province of the judge in this case. However, please listen carefully to the judge's instructions on Accountant Malpractice and the elements which must be established. The evidence in this case does (does not) support. . . .”Closing argument is where you seek to collect on the investment you have made by planning your case so carefully. You have researched and proven the elements of your claim or defense and it is time to make sure the jury knows about it.§ 2:9 Planning for trial—Law concerning juries and jury selectionLawyers who don't spend a lot of time trying jury cases may find jury selection procedures somewhat arcane or even mystifying, or may have blind spots when it comes to what juries may or may not do. If you are such a lawyer, you will find NY PJI useful as a quick study guide. Tucked away in the introductory portion of the book is a comment entitled, “Voir Dire—Selecting the Jury.” 1A | From The Bench: It is often helpful in the closing argument to acknowledge up front that counsel is not permitted to instruct the jury on the law. For example: “Members of the jury, I am not permitted to explain the law to you. That is purely and exclusively the province of the judge in this case. However, please listen carefully to the judge's instructions on Accountant Malpractice and the elements which must be established. The evidence in this case does (does not) support. . . .”Closing argument is where you seek to collect on the investment you have made by planning your case so carefully. You have researched and proven the elements of your claim or defense and it is time to make sure the jury knows about it.§ 2:9 Planning for trial—Law concerning juries and jury selectionLawyers who don't spend a lot of time trying jury cases may find jury selection procedures somewhat arcane or even mystifying, or may have blind spots when it comes to what juries may or may not do. If you are such a lawyer, you will find NY PJI useful as a quick study guide. Tucked away in the introductory portion of the book is a comment entitled, “Voir Dire—Selecting the Jury.” 1A |
| , | NY PJI3d 1:1, |
| at 15 to 28 (2018). This contains not only a verbatim reprint of the rules governing the two unconditionally approved selection methods (“White's method” and “Struck method”), but a discussion of the custom, practice and law concerning jury selection. Following is an outline of the contents of this comment:Voir Dire—Selecting the Jury1A | at 15 to 28 (2018). This contains not only a verbatim reprint of the rules governing the two unconditionally approved selection methods (“White's method” and “Struck method”), but a discussion of the custom, practice and law concerning jury selection. Following is an outline of the contents of this comment:Voir Dire—Selecting the Jury1A |
| , | NY PJI3d 1:1, |
| at 15 to 28 (2018)Outline of contentsMethods of SelectionAppendix E to Rule 202.33(f)A. General Principles Applicable to Jury SelectionB. “White's Method”C. “Struck Method”Differences Between MethodsNondesignated AlternatesTime LimitationsJudicial SupervisionAllocation of ChallengesQualifications of JurorsChallenges for Cause Based on Juror PartialityBatson Rulings(“Batson Rulings” discusses the U.S. Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibiting racial discrimination in the use of peremptory challenges, requiring application of a voir dire procedure—prima facie case, rebuttal, reply (pretext)—not unlike the “McDonnell-Douglas” scheme used in discrimination cases generally (see § 2:2, D. Contract and Other | at 15 to 28 (2018)Outline of contentsMethods of SelectionAppendix E to Rule 202.33(f)A. General Principles Applicable to Jury SelectionB. “White's Method”C. “Struck Method”Differences Between MethodsNondesignated AlternatesTime LimitationsJudicial SupervisionAllocation of ChallengesQualifications of JurorsChallenges for Cause Based on Juror PartialityBatson Rulings(“Batson Rulings” discusses the U.S. Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibiting racial discrimination in the use of peremptory challenges, requiring application of a voir dire procedure—prima facie case, rebuttal, reply (pretext)—not unlike the “McDonnell-Douglas” scheme used in discrimination cases generally (see § 2:2, D. Contract and Other |
| Wrongs)). View | Wrongs)).♦ View |
| From The Bench: Keep in mind that trial judges in New York are most often decidedly uninvolved in the jury voir dire process in civil cases. Typically, the trial part clerk supervises the entire selection process and involves the judge only where an objection is raised by either side. It is therefore important to find out in advance which method of voir dire the judge prefers. This may be done by a simple call to the judge's chambers. Justice Lunn's practice has been to send a letter several weeks prior to trial advising counsel of the method they would be using.Additional information concerning juries and the law relating to them is contained in actual instructions and the Comments following them, such as the | From The Bench: Keep in mind that trial judges in New York are most often decidedly uninvolved in the jury voir dire process in civil cases. Typically, the trial part clerk supervises the entire selection process and involves the judge only where an objection is raised by either side. It is therefore important to find out in advance which method of voir dire the judge prefers. This may be done by a simple call to the judge's chambers. Justice Lunn's practice has been to send a letter several weeks prior to trial advising counsel of the method they would be using.Additional information concerning juries and the law relating to them is contained in actual instructions and the Comments following them, such as the |
| following:. | following:PJI 1:103. |
| General Instruction—Supplemental Charge—Note-Taking by | General Instruction—Supplemental Charge—Note-Taking by |
| Jurors. | JurorsPJI 1:104. |
| General Instruction—Supplemental Charge—Questions by | General Instruction—Supplemental Charge—Questions by |
| Jurors. | JurorsPJI 1:104A. |
| General Instruction—Supplemental Charge—Jury View of the SceneAs always, the comments of the Committee and Reporters following these charges are replete with case citations.As to juror questions after the charge has been given, see § 3:5.Chapter 3Drafting Proposed Jury Charges and Verdict Sheets§ 3:1Drafting—In general§ 3:2—When you cannot find a charge matching your case§ 3:3—Special verdicts and verdict sheets§ 3:4Practical considerations—Preservation of the record§ 3:5—Post-chargeKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 3:1 Drafting—In generalNY PJI is intended to be an asset in drafting jury charges, not the be-all and end-all. Its pattern jury instructions and comments “are not the official expression of the Unified Court System and are intended as guides. Trial judges are not mandated to use them, and may adopt, modify or reject them. . . .” 1A NY PJI3d, at xxxix (2018). Even Chief Judge Kaye, in her laudatory Foreword to the Third Edition, avoids any language that might be interpreted as giving NY PJI the force of law or even the endorsement of the New York Court of Appeals.Nonetheless, if these books are an excellent starting point for research, they are an even better starting point for drafting jury instructions you actually need. The reason is practical rather than legal: this is why the books were written, and NY PJI is where judges like to start in drawing their jury | General Instruction—Supplemental Charge—Jury View of the SceneAs always, the comments of the Committee and Reporters following these charges are replete with case citations.As to juror questions after the charge has been given, see § 3:5.Chapter 3Drafting Proposed Jury Charges and Verdict Sheets§ 3:1Drafting—In general§ 3:2—When you cannot find a charge matching your case§ 3:3—Special verdicts and verdict sheets§ 3:4Practical considerations—Preservation of the record§ 3:5—Post-chargeKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 3:1 Drafting—In generalNY PJI is intended to be an asset in drafting jury charges, not the be-all and end-all. Its pattern jury instructions and comments “are not the official expression of the Unified Court System and are intended as guides. Trial judges are not mandated to use them, and may adopt, modify or reject them. . . .” 1A NY PJI3d, at xxxix (2018). Even Chief Judge Kaye, in her laudatory Foreword to the Third Edition, avoids any language that might be interpreted as giving NY PJI the force of law or even the endorsement of the New York Court of Appeals.Nonetheless, if these books are an excellent starting point for research, they are an even better starting point for drafting jury instructions you actually need. The reason is practical rather than legal: this is why the books were written, and NY PJI is where judges like to start in drawing their jury |
| instructions. View | instructions.♦ View |
| From The Bench: Trial judges often ask that lawyers submit their proposed jury charges well in advance of the trial date. The main reason is that this allows the judge—and forces the lawyers—to start thinking about the important legal issues well beforehand. Equally important, even though trial judges know that the charges in NY PJI are not carved in stone and should be modified, truncated, avoided, or enhanced when appropriate, following the lead of NY PJI has the benefit of keeping trial judges within their comfort zone.There's no use beating around the bush: The best way to start preparing your proposed jury charges is to find the relevant instructions in NY PJI and copy them verbatim. Then, and only then, you can start | From The Bench: Trial judges often ask that lawyers submit their proposed jury charges well in advance of the trial date. The main reason is that this allows the judge—and forces the lawyers—to start thinking about the important legal issues well beforehand. Equally important, even though trial judges know that the charges in NY PJI are not carved in stone and should be modified, truncated, avoided, or enhanced when appropriate, following the lead of NY PJI has the benefit of keeping trial judges within their comfort zone.There's no use beating around the bush: The best way to start preparing your proposed jury charges is to find the relevant instructions in NY PJI and copy them verbatim. Then, and only then, you can start |
| editing. View | editing.♦ View |
| From The Bench: In practice, proposed and planned jury charges are often prepared and submitted in the form of lists of NY PJI citations, without reprinting the actual text of the charges. Part Two of this volume is full of such lists and many trial justices keep files of their own for use as templates in different types of proceedings. Following is an example of an actual pre-trial notice used by Justice Lunn in his days as a trial justice and kept on file by him for use in other similar cases: SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF MONROE————— In the Matter of the Application ofR.P. McMURPHY, Petitioner, for a Rehearing and Review ofProceeding for Retention Pursuant to Mental PROPOSEDHygiene Law § 9.35JURY CHARGES vs. STATE HOSPITAL,Respondent. —————The Court is considering the following jury charges. Please submit any proposed changes or | From The Bench: In practice, proposed and planned jury charges are often prepared and submitted in the form of lists of NY PJI citations, without reprinting the actual text of the charges. Part Two of this volume is full of such lists and many trial justices keep files of their own for use as templates in different types of proceedings. Following is an example of an actual pre-trial notice used by Justice Lunn in his days as a trial justice and kept on file by him for use in other similar cases: SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF MONROE————— In the Matter of the Application ofR.P. McMURPHY, Petitioner, for a Rehearing and Review ofProceeding for Retention Pursuant to Mental PROPOSEDHygiene Law § 9.35JURY CHARGES vs. STATE HOSPITAL,Respondent. —————The Court is considering the following jury charges. Please submit any proposed changes or |
| additions: .Introduction.Review | additions: PJI 1:20.IntroductionPJI 1:21.Review |
| Principles | Principles |
| Stated.Falsus | StatedPJI 1:22.Falsus |
| in | in |
| Uno.Return | UnoPJI 1:24.Return |
| to | to |
| Courtroom.Consider | CourtroomPJI 1:25.Consider |
| Only Testimony and | Only Testimony and |
| Exhibits.Juror's | ExhibitsPJI 1:25A.Juror's |
| Use of Professional | Use of Professional |
| Expertise.Five-Sixths Verdict.Special Verdict.General | ExpertisePJI 1:26.Five-Sixths VerdictPJI 1:97.Special VerdictPJI 1:90.General |
| Instruction—Expert | Instruction—Expert |
| Witness.Mental | WitnessPJI 8:7.Mental |
| Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally | Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally |
| Ill.Conclusion.Alternate | IllPJI 1:28.ConclusionPJI 1:29.Alternate |
| JurorsFollowing is another example involving a somewhat more complicated matter: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE JANE DOE,Plaintiff,vs.PROPOSED JURY CHARGES JOHN SMITH,Index No. ——— Defendant. —————The Court is considering the following jury charges. Please submit any proposed changes or | JurorsFollowing is another example involving a somewhat more complicated matter: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE JANE DOE,Plaintiff,vs.PROPOSED JURY CHARGES JOHN SMITH,Index No. ——— Defendant. —————The Court is considering the following jury charges. Please submit any proposed changes or |
| additions: .Introduction.Review | additions: PJI 1:20.IntroductionPJI 1:21.Review |
| Principles | Principles |
| Stated.Falsus | StatedPJI 1:22.Falsus |
| in | in |
| Uno.Burden | UnoPJI 1:23.Burden |
| of | of |
| Proof.Return | ProofPJI 1:24.Return |
| to | to |
| Courtroom.Consider | CourtroomPJI 1:25.Consider |
| Only Testimony and | Only Testimony and |
| Exhibits.Juror's | ExhibitsPJI 1:25A.Juror's |
| Use of Professional | Use of Professional |
| Expertise.Five-Sixths Verdict.Exclude Sympathy.General | ExpertisePJI 1:26.Five-Sixths VerdictPJI 1:27.Exclude SympathyPJI 1:90.General |
| Instruction—Expert | Instruction—Expert |
| Witness.General | WitnessPJI 1:91.General |
| Instruction—Interested | Instruction—Interested |
| Witness—Generally.Special Verdict.Common | Witness—GenerallyPJI 1:97.Special VerdictPJI 2:10.Common |
| Law Standard of Care—Negligence | Law Standard of Care—Negligence |
| Defined—Generally.Common | Defined—GenerallyPJI 2:12.Common |
| Law Standard of | Law Standard of |
| Care—Foreseeability—Generally.Statutory | Care—Foreseeability—GenerallyPJI 2:26.Statutory |
| Standard of Care—Vehicle and Traffic Law Violation (as modified) V&T Law §§ 1111(a)(1) and | Standard of Care—Vehicle and Traffic Law Violation (as modified) V&T Law §§ 1111(a)(1) and |
| 1141.Comparative Negligence.Comparative | 1141PJI 2:36.Comparative NegligencePJI 2:36.1.Comparative |
| Negligence (supplemental | Negligence (supplemental |
| charge).Proximate | charge)PJI 2:70.Proximate |
| Cause—In | Cause—In |
| General.Motor | GeneralPJI 2:77.Motor |
| Vehicle Accidents—Duty Toward Other Drivers, In | Vehicle Accidents—Duty Toward Other Drivers, In |
| General.No-Fault | GeneralPJI 2:88C.No-Fault |
| Law—Serious | Law—Serious |
| Injury—Fracture.No-Fault | Injury—FracturePJI 2:88F.No-Fault |
| Law—Serious Injury—Significant Limitation of Use of Body Function or | Law—Serious Injury—Significant Limitation of Use of Body Function or |
| System.Damages—General.Damages—Personal | SystemPJI 2:277.Damages—GeneralPJI 2:280.Damages—Personal |
| Injury—Injury and Pain and | Injury—Injury and Pain and |
| Suffering.Damages—Personal | SufferingPJI 2:280.1.Damages—Personal |
| Injury—Injury and Pain and Suffering (Supplemental | Injury—Injury and Pain and Suffering (Supplemental |
| Instruction).Damages—Income Taxes.Damages—Personal | Instruction)PJI 2:280.2.Damages—Income TaxesPJI 2:281.Damages—Personal |
| Injury—Permanence—Life Expectancy Tables (life expectancy 21.5 years, age | Injury—Permanence—Life Expectancy Tables (life expectancy 21.5 years, age |
| 62).Damages—Personal | 62)PJI 2:282.Damages—Personal |
| Injury—Aggravation of Pre-existing | Injury—Aggravation of Pre-existing |
| Injury.Itemized Verdict.Conclusion.Alternate | InjuryPJI 2:301.Itemized VerdictPJI 1:28.ConclusionPJI 1:29.Alternate |
| JurorsYou cannot help but learn useful things when you review a set of proposed jury instructions. Can there be any doubt that you will learn even more when you prepare them in advance of trial? If you didn't do all your homework at the initial intake stage—by using NY PJI as a research tool to help decide whether you have a good case—there is no avoiding it when you get to late pre-trial stage. If the trial judge has not mandated early submission of jury charges, you should prepare them anyway; your proposed charges will help you spot weaknesses in your presentation that you have time to fix.In the Mental Hygiene Law case above, for example, by focusing on the central substantive instruction, | JurorsYou cannot help but learn useful things when you review a set of proposed jury instructions. Can there be any doubt that you will learn even more when you prepare them in advance of trial? If you didn't do all your homework at the initial intake stage—by using NY PJI as a research tool to help decide whether you have a good case—there is no avoiding it when you get to late pre-trial stage. If the trial judge has not mandated early submission of jury charges, you should prepare them anyway; your proposed charges will help you spot weaknesses in your presentation that you have time to fix.In the Mental Hygiene Law case above, for example, by focusing on the central substantive instruction, |
| , | PJI 8:7, you |
| can map out what you or your opponent will need to prove and by what standard, as follows (boldfaced italics | can map out what you or your opponent will need to prove and by what standard, as follows (boldfaced italics |
| added):. | added):PJI 8:7. |
| Mental Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally IllIn this proceeding, the Director of the (institution, school) seeks to retain (AB) in the (institution, school) against (his, her) will on the ground that (AB) is (mentally ill, mentally retarded) and in need of retention.The Director, in order to succeed, must prove by clear and convincing evidence that (AB) is (mentally ill, mentally retarded) and that (AB) is in need of retention in a[n] (institution, school). You have heard Dr., the [psychiatrist, psychologist] who testified, state that in (his, her) opinion (AB) is (mentally ill, mentally retarded).[Where appropriate, refer to other expert testimony concerning this issue].Where the application involves a patient asserted to be mentally ill, state:A person is mentally ill when (he, she) is afflicted with a mental disease or mental condition which shows its presence by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that (he, she) requires care, treatment and rehabilitation. A mentally ill person is in need of retention when, having been admitted to a (hospital, institution), (he, she) needs involuntary care and treatment for a further time. This means that the mentally ill person requires continuing care and treatment in a (hospital, institution) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.Where the application involves a patient asserted to be mentally retarded, state:A person is mentally retarded when he/she has subaverage intellectual functioning which originated during (his, her) developmental period and suffers from impairment in adaptive behavior. Subaverage intellectual functioning is arrived at according to scores on a generally accepted intelligence test. This subaverage intellectual functioning must be a long-standing one, not one that suddenly came about, for example, as a result of stroke or head injury, and must be one which makes the person unable to take care of (himself, herself) and manage (his, her) life.A mentally retarded person is in need of retention when, having been admitted to an (institution, school), (he, she) needs involuntary care and treatment for a further time. This means that the mentally retarded person requires continuing care and treatment in an (institution, school) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.To compel the continued retention of (AB), the Director must prove, by clear and convincing evidence, that (AB) is (mentally ill, mentally retarded) and is in need of involuntary care and treatment. In order to do so, the Director must prove three facts: one, that (AB) is (mentally ill, mentally retarded), as that term has been defined for you; two, that continued care and treatment as a (patient, resident) in that (hospital, institution, school) is essential to (AB's) welfare, that is, that care and treatment is necessary due to a real risk of substantial physical harm to the well being of (AB) or others; and three, that (AB's) judgment is so impaired that (he, she) is unable to understand the need for continued care and treatment.Clear and convincing evidence is evidence which satisfies you that there is a high degree of probability that what is sought to be proved is actually the fact. It is not enough to find that it is more likely than not that the three facts that the Director must establish have been proved. The Director must convince you that it is highly probable that each of those facts exists.As I mentioned to you, one of the three facts that the Director must prove is that continued treatment is essential to the welfare of (AB). Treatment is not essential to (AB's) welfare merely because it would be beneficial. For example, we know that there are people in society who would benefit from various types of treatment, such as surgery, but they may not be forced to receive it against their wishes. What the law means by essential to (AB's) welfare is that the care and treatment is necessary due to a real risk of substantial physical harm to the well-being of (AB) or others. Such a risk can result from (recent acts, attempts, or threats) made by (AB). The risk may also result from (AB's) lack of ability to control (his, her) behavior or to provide for (his, her) essential needs for food, clothing or shelter. To show that it is essential that AB be retained in the (institution, school), the Director must prove that there is no alternative form of care and treatment reasonably available which is less restrictive of (AB's) freedom.So, if you are representing the alleged incompetent in this type of case, the charge gives you a score card for trial:McMurphy case:Ratched must prove by clear and convincing evidence:1. McMurphy requires continuing institutional care and treatment which is essential to his welfare:a. Not enough that confinement would be beneficial.b. Absent confinement there must be real risk of substantial physical harm to well-being of patient or others.McMurphy case:2. McMurphy's judgment is so impaired that he is unable to understand the need for such care and treatment.3. There is no alternative form of care and treatment reasonably available which is less restrictive of McMurphy's freedom. Perhaps the word “freedom”—the very last word in | Mental Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally IllIn this proceeding, the Director of the (institution, school) seeks to retain (AB) in the (institution, school) against (his, her) will on the ground that (AB) is (mentally ill, mentally retarded) and in need of retention.The Director, in order to succeed, must prove by clear and convincing evidence that (AB) is (mentally ill, mentally retarded) and that (AB) is in need of retention in a[n] (institution, school). You have heard Dr., the [psychiatrist, psychologist] who testified, state that in (his, her) opinion (AB) is (mentally ill, mentally retarded).[Where appropriate, refer to other expert testimony concerning this issue].Where the application involves a patient asserted to be mentally ill, state:A person is mentally ill when (he, she) is afflicted with a mental disease or mental condition which shows its presence by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that (he, she) requires care, treatment and rehabilitation. A mentally ill person is in need of retention when, having been admitted to a (hospital, institution), (he, she) needs involuntary care and treatment for a further time. This means that the mentally ill person requires continuing care and treatment in a (hospital, institution) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.Where the application involves a patient asserted to be mentally retarded, state:A person is mentally retarded when he/she has subaverage intellectual functioning which originated during (his, her) developmental period and suffers from impairment in adaptive behavior. Subaverage intellectual functioning is arrived at according to scores on a generally accepted intelligence test. This subaverage intellectual functioning must be a long-standing one, not one that suddenly came about, for example, as a result of stroke or head injury, and must be one which makes the person unable to take care of (himself, herself) and manage (his, her) life.A mentally retarded person is in need of retention when, having been admitted to an (institution, school), (he, she) needs involuntary care and treatment for a further time. This means that the mentally retarded person requires continuing care and treatment in an (institution, school) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.To compel the continued retention of (AB), the Director must prove, by clear and convincing evidence, that (AB) is (mentally ill, mentally retarded) and is in need of involuntary care and treatment. In order to do so, the Director must prove three facts: one, that (AB) is (mentally ill, mentally retarded), as that term has been defined for you; two, that continued care and treatment as a (patient, resident) in that (hospital, institution, school) is essential to (AB's) welfare, that is, that care and treatment is necessary due to a real risk of substantial physical harm to the well being of (AB) or others; and three, that (AB's) judgment is so impaired that (he, she) is unable to understand the need for continued care and treatment.Clear and convincing evidence is evidence which satisfies you that there is a high degree of probability that what is sought to be proved is actually the fact. It is not enough to find that it is more likely than not that the three facts that the Director must establish have been proved. The Director must convince you that it is highly probable that each of those facts exists.As I mentioned to you, one of the three facts that the Director must prove is that continued treatment is essential to the welfare of (AB). Treatment is not essential to (AB's) welfare merely because it would be beneficial. For example, we know that there are people in society who would benefit from various types of treatment, such as surgery, but they may not be forced to receive it against their wishes. What the law means by essential to (AB's) welfare is that the care and treatment is necessary due to a real risk of substantial physical harm to the well-being of (AB) or others. Such a risk can result from (recent acts, attempts, or threats) made by (AB). The risk may also result from (AB's) lack of ability to control (his, her) behavior or to provide for (his, her) essential needs for food, clothing or shelter. To show that it is essential that AB be retained in the (institution, school), the Director must prove that there is no alternative form of care and treatment reasonably available which is less restrictive of (AB's) freedom.So, if you are representing the alleged incompetent in this type of case, the charge gives you a score card for trial:McMurphy case:Ratched must prove by clear and convincing evidence:1. McMurphy requires continuing institutional care and treatment which is essential to his welfare:a. Not enough that confinement would be beneficial.b. Absent confinement there must be real risk of substantial physical harm to well-being of patient or others.McMurphy case:2. McMurphy's judgment is so impaired that he is unable to understand the need for such care and treatment.3. There is no alternative form of care and treatment reasonably available which is less restrictive of McMurphy's freedom. Perhaps the word “freedom”—the very last word in |
| — | PJI 8:7—has |
| turned a light on; you will talk about liberty. In your argument and overall presentation, you will eschew the euphemistic term “retention” and use the word “confinement” instead. When the judge is instructing the jury, you will draw dramatic strength from both the judge's intonation of “against his will” in the very first sentence and “freedom” at the end. You have a theme.Now suppose, in reading over | turned a light on; you will talk about liberty. In your argument and overall presentation, you will eschew the euphemistic term “retention” and use the word “confinement” instead. When the judge is instructing the jury, you will draw dramatic strength from both the judge's intonation of “against his will” in the very first sentence and “freedom” at the end. You have a theme.Now suppose, in reading over |
| , | PJI 8:7, |
| and having decided on your “freedom” theme, you find some language—the paragraph defining “clear and convincing”—that you don't like because it's abstract and it detracts from the dramatic flow of the instruction itself—which is excellent for your purposes in its alpha—“against his will”—and its omega—“freedom.”Clear and convincing evidence is evidence which satisfies you that there is a high degree of probability that what is sought to be proved is actually the fact. It is not enough to find that it is more likely than not that the three facts that the Director must establish have been proved. The Director must convince you that it is highly probable that each of those facts exists.You want to eliminate this paragraph because it interrupts the flow; you think it's soporific and you don't want the jurors' minds wandering during this otherwise dramatic and useful instruction. How can you convince the court to get rid of this paragraph?You check the NY PJI Index under “CLEAR AND CONVINCING EVIDENCE” and sure enough the first entry shows you that there is a General charge on “clear and convincing evidence,” PJI 1:64. Sure enough, you find that the definition of “clear and convincing” there is no different from the explanation given in | and having decided on your “freedom” theme, you find some language—the paragraph defining “clear and convincing”—that you don't like because it's abstract and it detracts from the dramatic flow of the instruction itself—which is excellent for your purposes in its alpha—“against his will”—and its omega—“freedom.”Clear and convincing evidence is evidence which satisfies you that there is a high degree of probability that what is sought to be proved is actually the fact. It is not enough to find that it is more likely than not that the three facts that the Director must establish have been proved. The Director must convince you that it is highly probable that each of those facts exists.You want to eliminate this paragraph because it interrupts the flow; you think it's soporific and you don't want the jurors' minds wandering during this otherwise dramatic and useful instruction. How can you convince the court to get rid of this paragraph?You check the NY PJI Index under “CLEAR AND CONVINCING EVIDENCE” and sure enough the first entry shows you that there is a General charge on “clear and convincing evidence,” PJI 1:64. Sure enough, you find that the definition of “clear and convincing” there is no different from the explanation given in |
| . | PJI 8:7. |
| More important, it's with the “general instructions,” which is where you'd prefer to have the court explain the “clear and convincing” standard, and even better, it's more explicit than | More important, it's with the “general instructions,” which is where you'd prefer to have the court explain the “clear and convincing” standard, and even better, it's more explicit than |
| PJI 8:7 |
| in differentiating between the “preponderance of the evidence” standard and the “clear and convincing” standard. | in differentiating between the “preponderance of the evidence” standard and the “clear and convincing” standard. |
| Compare:. | Compare:PJI 1:64. |
| General Instruction—Burden of Proof—Clear and Convincing Evidence The burden is on the plaintiff to prove [here state the ultimate issue to be decided] (e.g., fraud, malice, mistake, a gift, the contract between the plaintiff and the deceased, incompetency, addiction) by clear and convincing evidence. This means evidence that satisfies you that there is a high degree of probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction), as I (have defined, will define) it for you.To decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff's favor. A party who must prove (his, her) case by a preponderance of the evidence only need satisfy you that the evidence supporting (his, her) case more nearly represents what actually happened than the evidence which is opposed to it, but a party who must establish (his, her) case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what (he, she) claims is what actually happened.If, upon all the evidence, you are satisfied that there is a high probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction) as I (have defined, will define) it for you, you must decide for the plaintiff. If you are not satisfied that there is such a high probability, you must decide for the defendant.This is the instruction you want; it's a dispositive instruction, telling the jury what it “must” do if the “clear and convincing” standard is not met. It makes very clear that there are two different standards and that “clear and convincing” is the harder one to meet. Moreover, it gives you, as counsel, an opportunity, because it expressly requires your draftsmanship in “stat[ing] the ultimate issue to be decided,” and, reading carefully, it implicitly allows for the option of having the instruction read either after or before the substantive charge to which it relates (see the parenthetical—“(have defined, will define)”).You decide that you will ask the judge to give instruction 1:64, as specifically developed by you in light of the legal requirements of this case, and you will submit that specific instruction—as modified—as one of your proposed charges. Moreover, you want it read after the substantive instruction, | General Instruction—Burden of Proof—Clear and Convincing Evidence The burden is on the plaintiff to prove [here state the ultimate issue to be decided] (e.g., fraud, malice, mistake, a gift, the contract between the plaintiff and the deceased, incompetency, addiction) by clear and convincing evidence. This means evidence that satisfies you that there is a high degree of probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction), as I (have defined, will define) it for you.To decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff's favor. A party who must prove (his, her) case by a preponderance of the evidence only need satisfy you that the evidence supporting (his, her) case more nearly represents what actually happened than the evidence which is opposed to it, but a party who must establish (his, her) case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what (he, she) claims is what actually happened.If, upon all the evidence, you are satisfied that there is a high probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction) as I (have defined, will define) it for you, you must decide for the plaintiff. If you are not satisfied that there is such a high probability, you must decide for the defendant.This is the instruction you want; it's a dispositive instruction, telling the jury what it “must” do if the “clear and convincing” standard is not met. It makes very clear that there are two different standards and that “clear and convincing” is the harder one to meet. Moreover, it gives you, as counsel, an opportunity, because it expressly requires your draftsmanship in “stat[ing] the ultimate issue to be decided,” and, reading carefully, it implicitly allows for the option of having the instruction read either after or before the substantive charge to which it relates (see the parenthetical—“(have defined, will define)”).You decide that you will ask the judge to give instruction 1:64, as specifically developed by you in light of the legal requirements of this case, and you will submit that specific instruction—as modified—as one of your proposed charges. Moreover, you want it read after the substantive instruction, |
| , | PJI 8:7, |
| so that, instead of putting the jury to sleep, it will—you hope—further impress on them the burden that the hospital must carry, as | so that, instead of putting the jury to sleep, it will—you hope—further impress on them the burden that the hospital must carry, as |
| follows:. | follows:PJI 1:64. |
| General Instruction—Burden of Proof—Clear and Convincing Evidence [modified]The burden is on the plaintiff Director to prove [here state the ultimate issue to be decided] (e.g., fraud, malice, mistake, a gift, the contract between the plaintiff and the deceased, incompetency, addiction) that McMurphy is mentally ill and that McMurphy is in need of retention in an institution by clear and convincing evidence. This means evidence that satisfies you that there is a high degree of probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction) McMurphy is mentally ill and that McMurphy is in need of retention in an institution, as I have defined it for you.To decide for the plaintiff Director it is not enough to find that the preponderance of the evidence is in the plaintiff's Director's favor. A party who must prove (his, her) case by a preponderance of the evidence only need satisfy you that the evidence supporting (his, her) case more nearly represents what actually happened than the evidence which is opposed to it, but a party who must establish (his, her) case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what (he, she) claims is what actually happened is actually true.If, upon all the evidence, you are satisfied that there is a high probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction) McMurphy is mentally ill and that McMurphy is in need of retention in an institution, as I (have defined, will define) it have explained these concepts for you, you must decide for the plaintiff Director. If you are not satisfied that there is such a high probability, you must decide for the defendant McMurphy.So, if, as McMurphy's attorney, you have received from the trial judge the list of proposed instructions shown in the first example above, you will respond to the trial judge that you would like to do things a little differently. You modify the judge's sheet of proposed instructions as follows:SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF MONROE————— In the Matter of the Application ofR.P. McMURPHY, Petitioner, for a Rehearing and Review ofProceeding for Retention Pursuant to Mental PROPOSEDHygiene Law § 9.35JURY CHARGES vs. STATE HOSPITAL,Respondent. —————The Court is considering the following jury charges. Please submit any proposed Plaintiff R.P. McMurphy, by his attorney, respectfully submits the following changes or additions to the Court's Proposed Jury | General Instruction—Burden of Proof—Clear and Convincing Evidence [modified]The burden is on the plaintiff Director to prove [here state the ultimate issue to be decided] (e.g., fraud, malice, mistake, a gift, the contract between the plaintiff and the deceased, incompetency, addiction) that McMurphy is mentally ill and that McMurphy is in need of retention in an institution by clear and convincing evidence. This means evidence that satisfies you that there is a high degree of probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction) McMurphy is mentally ill and that McMurphy is in need of retention in an institution, as I have defined it for you.To decide for the plaintiff Director it is not enough to find that the preponderance of the evidence is in the plaintiff's Director's favor. A party who must prove (his, her) case by a preponderance of the evidence only need satisfy you that the evidence supporting (his, her) case more nearly represents what actually happened than the evidence which is opposed to it, but a party who must establish (his, her) case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what (he, she) claims is what actually happened is actually true.If, upon all the evidence, you are satisfied that there is a high probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction) McMurphy is mentally ill and that McMurphy is in need of retention in an institution, as I (have defined, will define) it have explained these concepts for you, you must decide for the plaintiff Director. If you are not satisfied that there is such a high probability, you must decide for the defendant McMurphy.So, if, as McMurphy's attorney, you have received from the trial judge the list of proposed instructions shown in the first example above, you will respond to the trial judge that you would like to do things a little differently. You modify the judge's sheet of proposed instructions as follows:SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF MONROE————— In the Matter of the Application ofR.P. McMURPHY, Petitioner, for a Rehearing and Review ofProceeding for Retention Pursuant to Mental PROPOSEDHygiene Law § 9.35JURY CHARGES vs. STATE HOSPITAL,Respondent. —————The Court is considering the following jury charges. Please submit any proposed Plaintiff R.P. McMurphy, by his attorney, respectfully submits the following changes or additions to the Court's Proposed Jury |
| Charges: .Introduction.Review | Charges: PJI 1:20.IntroductionPJI 1:21.Review |
| Principles | Principles |
| Stated.Falsus | StatedPJI 1:22.Falsus |
| in | in |
| Uno.Return | UnoPJI 1:24.Return |
| to | to |
| Courtroom.Consider | CourtroomPJI 1:25.Consider |
| Only Testimony and | Only Testimony and |
| Exhibits.Juror's | ExhibitsPJI 1:25A.Juror's |
| Use of Professional | Use of Professional |
| Expertise.Five-Sixths Verdict.Special Verdict.General | ExpertisePJI 1:26.Five-Sixths VerdictPJI 1:97.Special VerdictPJI 1:90.General |
| Instruction—Expert | Instruction—Expert |
| Witness.Mental | WitnessPJI 8:7.Mental |
| Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally Ill [modified by deletion of penultimate paragraph on “Clear and convincing evidence” see | Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally Ill [modified by deletion of penultimate paragraph on “Clear and convincing evidence” see |
| Attachment].General | Attachment]PJI 1:64.General |
| Instruction—Burden of Proof—Clear and Convincing Evidence [as modified—see | Instruction—Burden of Proof—Clear and Convincing Evidence [as modified—see |
| Attachment].Conclusion.Alternate | Attachment]PJI 1:28.ConclusionPJI 1:29.Alternate |
| JurorsPerhaps you will find other changes to submit. You mentally thank the judge for sending out proposed jury charges. You have begun preparing for trial. You are preparing your own jury instructions. You are thinking about your presentation. You are thinking about your | JurorsPerhaps you will find other changes to submit. You mentally thank the judge for sending out proposed jury charges. You have begun preparing for trial. You are preparing your own jury instructions. You are thinking about your presentation. You are thinking about your |
| audience. View | audience.♦ View |
| From The Bench: When you are modifying NY PJI charges, it is best to: (a) show precisely how you have modified the pattern instruction; and (b) within the same document, explain why you are proposing that it be changed, citing any relevant authority in support of your position. Judges don't particularly like to spend time comparing the full text of proposed charges with the NY PJI originals. The following is an example of what you might submit as the “Attachment” to your list of proposed Jury Instructions (see above) in McMurphy v. State Hospital, concerning your proposed modification of | From The Bench: When you are modifying NY PJI charges, it is best to: (a) show precisely how you have modified the pattern instruction; and (b) within the same document, explain why you are proposing that it be changed, citing any relevant authority in support of your position. Judges don't particularly like to spend time comparing the full text of proposed charges with the NY PJI originals. The following is an example of what you might submit as the “Attachment” to your list of proposed Jury Instructions (see above) in McMurphy v. State Hospital, concerning your proposed modification of |
| , | PJI 8:7, |
| showing deletion of the paragraph on the “clear and convincing” standard and as well as paragraph concerning mental retardation (because McMurphy isn't mentally retarded, just a troublemaker):Proposed Modification of | showing deletion of the paragraph on the “clear and convincing” standard and as well as paragraph concerning mental retardation (because McMurphy isn't mentally retarded, just a troublemaker):Proposed Modification of |
| . | PJI 8:7PJI 8:7. |
| Mental Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally Ill In this proceeding, the Director of the (institution, school) State Hospital seeks to retain (AB) McMurphy in the (institution, school) hospital against (his, her) will on the ground that (AB) McMurphy is (mentally ill, mentally retarded) and in need of retention.The Director, in order to succeed, must prove by clear and convincing evidence that (AB) McMurphy is (mentally ill, mentally retarded) and that (AB) is in need of retention in a[n] (institution, school). You have heard Dr. Ratched—, the [nurse psychiatrist, psychologist] who testified, state that in (his, her) opinion (AB) is (mentally ill, mentally retarded).[Where appropriate, refer to other expert testimony concerning this issue].Where the application involves a patient asserted to be mentally ill, state:A person is mentally ill when (he, she) is afflicted with a mental disease or mental condition which shows its presence by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that (he, she) requires care, treatment and rehabilitation. A mentally ill person is in need of retention when, having been admitted to a (hospital, institution), (he, she) needs involuntary care and treatment for a further time. This means that the mentally ill person requires continuing care and treatment in a (hospital, institution) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.Where the application involves a patient asserted to be mentally retarded, state:A person is mentally retarded when he/she has subaverage intellectual functioning which originated during (his, her) developmental period and suffers from impairment in adaptive behavior. Subaverage intellectual functioning is arrived at according to scores on a generally accepted intelligence test. This subaverage intellectual functioning must be a long-standing one, not one that suddenly came about, for example, as a result of stroke or head injury, and must be one which makes the person unable to take care of (himself, herself) and manage (his, her) life.A mentally retarded person is in need of retention when, having been admitted to an (institution, school), (he, she) needs involuntary care and treatment for a further time. This means that the mentally retarded person requires continuing care and treatment in an (institution, school) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.To compel the continued retention of (AB) McMurphy, the Director must prove, by clear and convincing evidence, that (AB) McMurphy is (mentally ill, mentally retarded) and is in need of involuntary care and treatment. In order to do so, the Director must prove three facts: one, that (AB) McMurphy is (mentally ill, mentally retarded), as that term has been defined for you; two, that continued care and treatment as a (patient, resident) in that (hospital, institution, school) is essential to (AB's) McMurphy's welfare, that is, that care and treatment is necessary due to a real risk of substantial physical harm to the well being of (AB) McMurphy or others; and three, that (AB's) McMurphy's judgment is so impaired that (he, she) is unable to understand the need for continued care and treatment.Clear and convincing evidence is evidence which satisfies you that there is a high degree of probability that what is sought to be proved is actually the fact. It is not enough to find that it is more likely than not that the three facts that the Director must establish have been proved. The Director must convince you that it is highly probable that each of those facts exists.As I mentioned to you, one of the three facts that the Director must prove is that continued treatment is essential to the welfare of (AB) McMurphy. Treatment is not essential to (AB's) McMurphy's welfare merely because it would be beneficial. For example, we know that there are people in society who would benefit from various types of treatment, such as surgery, but they may not be forced to receive it against their wishes. What the law means by essential to (AB's) McMurphy's welfare is that the care and treatment is necessary due to a real risk of substantial physical harm to the well-being of (AB) McMurphy or others. Such a risk can result from (recent acts, attempts, or threats) made by (AB) McMurphy. The risk may also result from (AB's) McMurphy's lack of ability to control (his, her) behavior or to provide for (his, her) essential needs for food, clothing or shelter. To show that it is essential that (AB) McMurphy be retained in the (institution, school), the Director must prove that there is no alternative form of care and treatment reasonably available which is less restrictive of (AB's) McMurphy's freedom. Attorney's Explanation of Modifications:The above represents | Mental Hygiene Law—Involuntary Retention of the Mentally Retarded or Mentally Ill In this proceeding, the Director of the (institution, school) State Hospital seeks to retain (AB) McMurphy in the (institution, school) hospital against (his, her) will on the ground that (AB) McMurphy is (mentally ill, mentally retarded) and in need of retention.The Director, in order to succeed, must prove by clear and convincing evidence that (AB) McMurphy is (mentally ill, mentally retarded) and that (AB) is in need of retention in a[n] (institution, school). You have heard Dr. Ratched—, the [nurse psychiatrist, psychologist] who testified, state that in (his, her) opinion (AB) is (mentally ill, mentally retarded).[Where appropriate, refer to other expert testimony concerning this issue].Where the application involves a patient asserted to be mentally ill, state:A person is mentally ill when (he, she) is afflicted with a mental disease or mental condition which shows its presence by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that (he, she) requires care, treatment and rehabilitation. A mentally ill person is in need of retention when, having been admitted to a (hospital, institution), (he, she) needs involuntary care and treatment for a further time. This means that the mentally ill person requires continuing care and treatment in a (hospital, institution) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.Where the application involves a patient asserted to be mentally retarded, state:A person is mentally retarded when he/she has subaverage intellectual functioning which originated during (his, her) developmental period and suffers from impairment in adaptive behavior. Subaverage intellectual functioning is arrived at according to scores on a generally accepted intelligence test. This subaverage intellectual functioning must be a long-standing one, not one that suddenly came about, for example, as a result of stroke or head injury, and must be one which makes the person unable to take care of (himself, herself) and manage (his, her) life.A mentally retarded person is in need of retention when, having been admitted to an (institution, school), (he, she) needs involuntary care and treatment for a further time. This means that the mentally retarded person requires continuing care and treatment in an (institution, school) which is essential to (his, her) welfare and that (his, her) judgment is so impaired that (he, she) is unable to understand the need for such care and treatment.To compel the continued retention of (AB) McMurphy, the Director must prove, by clear and convincing evidence, that (AB) McMurphy is (mentally ill, mentally retarded) and is in need of involuntary care and treatment. In order to do so, the Director must prove three facts: one, that (AB) McMurphy is (mentally ill, mentally retarded), as that term has been defined for you; two, that continued care and treatment as a (patient, resident) in that (hospital, institution, school) is essential to (AB's) McMurphy's welfare, that is, that care and treatment is necessary due to a real risk of substantial physical harm to the well being of (AB) McMurphy or others; and three, that (AB's) McMurphy's judgment is so impaired that (he, she) is unable to understand the need for continued care and treatment.Clear and convincing evidence is evidence which satisfies you that there is a high degree of probability that what is sought to be proved is actually the fact. It is not enough to find that it is more likely than not that the three facts that the Director must establish have been proved. The Director must convince you that it is highly probable that each of those facts exists.As I mentioned to you, one of the three facts that the Director must prove is that continued treatment is essential to the welfare of (AB) McMurphy. Treatment is not essential to (AB's) McMurphy's welfare merely because it would be beneficial. For example, we know that there are people in society who would benefit from various types of treatment, such as surgery, but they may not be forced to receive it against their wishes. What the law means by essential to (AB's) McMurphy's welfare is that the care and treatment is necessary due to a real risk of substantial physical harm to the well-being of (AB) McMurphy or others. Such a risk can result from (recent acts, attempts, or threats) made by (AB) McMurphy. The risk may also result from (AB's) McMurphy's lack of ability to control (his, her) behavior or to provide for (his, her) essential needs for food, clothing or shelter. To show that it is essential that (AB) McMurphy be retained in the (institution, school), the Director must prove that there is no alternative form of care and treatment reasonably available which is less restrictive of (AB's) McMurphy's freedom. Attorney's Explanation of Modifications:The above represents |
| PJI 8:7 |
| as it appears in NY PJI, with proposed deletions shown as strike-throughs and proposed insertions underscored.1. Paragraph pertaining to alleged mental retardation have been deleted inasmuch as there are no such allegations in the present case.2. The paragraph on “clear and convincing” evidence has been deleted in favor of the addition of the pattern general charge | as it appears in NY PJI, with proposed deletions shown as strike-throughs and proposed insertions underscored.1. Paragraph pertaining to alleged mental retardation have been deleted inasmuch as there are no such allegations in the present case.2. The paragraph on “clear and convincing” evidence has been deleted in favor of the addition of the pattern general charge |
| () | (PJI 1:64) |
| on the same subject, immediately following the present instruction. It is submitted that such modification will make the overall charge easier for the jury to follow and will provide a better explanation of the “clear and convincing” standard.§ 3:2 Drafting—When you cannot find a charge matching your caseAlthough the substantive and procedural coverage of NY PJI is much broader than most lawyers realize, it does not and could not cover everything, nor does it claim to. As the Committee says, “Each case has its own unique elements and application of the law and the facts of the case will indicate to what extent a given charge should be modified or even rejected. It is important to note that most of the pattern charges state general principles, some of which may be irrelevant to the facts of a particular case and which, in some cases, should not be stated to the jury. . . .” 1A NY PJI3d, at xxxix (2018). “[P]attern charges using illustrative facts are sometimes used. Such charges illustrate only a single factual variation for which the legal principle stated in the charge may be used.” 1A NY PJI3d, at xl (2018).What to do when you are unable to find in NY PJI the charge applicable to your case? Simple enough—use NY PJI, but use it as a research resource, and then follow the Committee's example in preparing your own charge by adopting or adapting the language of a statute or a court decision or the Committee's own exposition of the law, in its comments and introductions. “[L]egal correctness of the charges is primary and the Committee has been loathe to deviate from the language used by the appellate decision or the statute on which the charge is based where the language cannot be transformed without use of terminology that may not fully express the principles espoused by the appellate court or the relevant statute.” 1A NY PJI3d, at xxxix (2018).If you have a contract case, for example, and you have a dispute as to whether a contract was formed, or whether it was sufficiently performed by one of the parties, you are unlikely to find the instruction you will need in NY PJI, but you will find a plethora of research that will probably allow you to prepare your own. The instructions will have to be drawn from the facts of your case.You can look to NY PJI—not for an actual instruction but for an example of how an instruction should be drawn, and then for research leads to tie the facts of your case to the applicable legal principles to be embodied in an instruction. You will find such an example in | on the same subject, immediately following the present instruction. It is submitted that such modification will make the overall charge easier for the jury to follow and will provide a better explanation of the “clear and convincing” standard.§ 3:2 Drafting—When you cannot find a charge matching your caseAlthough the substantive and procedural coverage of NY PJI is much broader than most lawyers realize, it does not and could not cover everything, nor does it claim to. As the Committee says, “Each case has its own unique elements and application of the law and the facts of the case will indicate to what extent a given charge should be modified or even rejected. It is important to note that most of the pattern charges state general principles, some of which may be irrelevant to the facts of a particular case and which, in some cases, should not be stated to the jury. . . .” 1A NY PJI3d, at xxxix (2018). “[P]attern charges using illustrative facts are sometimes used. Such charges illustrate only a single factual variation for which the legal principle stated in the charge may be used.” 1A NY PJI3d, at xl (2018).What to do when you are unable to find in NY PJI the charge applicable to your case? Simple enough—use NY PJI, but use it as a research resource, and then follow the Committee's example in preparing your own charge by adopting or adapting the language of a statute or a court decision or the Committee's own exposition of the law, in its comments and introductions. “[L]egal correctness of the charges is primary and the Committee has been loathe to deviate from the language used by the appellate decision or the statute on which the charge is based where the language cannot be transformed without use of terminology that may not fully express the principles espoused by the appellate court or the relevant statute.” 1A NY PJI3d, at xxxix (2018).If you have a contract case, for example, and you have a dispute as to whether a contract was formed, or whether it was sufficiently performed by one of the parties, you are unlikely to find the instruction you will need in NY PJI, but you will find a plethora of research that will probably allow you to prepare your own. The instructions will have to be drawn from the facts of your case.You can look to NY PJI—not for an actual instruction but for an example of how an instruction should be drawn, and then for research leads to tie the facts of your case to the applicable legal principles to be embodied in an instruction. You will find such an example in |
| , | PJI 4:1, the |
| lone instruction in NY PJI covering generally the elements of a contract case (but don't overlook specific NY PJI coverage of contracts for services | lone instruction in NY PJI covering generally the elements of a contract case (but don't overlook specific NY PJI coverage of contracts for services |
| ( | (PJI 4:30 |
| to | to |
| ), | 4:35), |
| warranties | warranties |
| (), | (PJI 4:40), |
| insurance contracts | insurance contracts |
| ( | (PJI 4:45 |
| to | to |
| ), | 4:80), |
| bank-depositor relationships | bank-depositor relationships |
| ( | (PJI 4:85 |
| to | to |
| ), | 4:89), |
| bailments | bailments |
| ( | (PJI 4:93 |
| to | to |
| ), | 4:93.1), |
| and landlord-tenant | and landlord-tenant |
| ( | (PJI 6:1 |
| to | to |
| )). | 6:21)). |
| Notice how closely the pattern charge is tied to the facts of a specific | Notice how closely the pattern charge is tied to the facts of a specific |
| case:. | case:PJI 4:1. |
| Contracts—ElementsPlaintiff AB seeks to recover damages for breach of contract. AB claims ([state contention, such as:—] AB developed a plan of life insurance coverage for the officers of a group of corporations controlled by defendant CD in reliance on CD's promise that if the plan were used CD would place the insurance through AB). CD admits (that AB presented a plan, that CD used the plan, and that CD placed the insurance through an agent other than AB). However, CD claims that (AB submitted the plan to CD voluntarily, without any promise that CD would place the insurance through AB). The burden is on AB to prove that AB's (preparation and submission of the plan) was rendered in reliance on a promise by CD that (if the plan were used the insurance would be placed through AB).Such a promise need not have been made in express language; it may be implied from the conduct of the parties. It is not enough, however, that AB hoped or expected that if (he, she, it) (prepared and submitted a plan) CD would (place the insurance through AB). To find such a promise, you must find either that CD in express language said that (if AB submitted a plan and it was used, the insurance would be placed through AB) or that before (preparing and submitting the plan) AB made clear to CD that (if AB prepared and submitted a plan and it was used, CD would be expected to place the insurance through AB) and that CD thereafter by (accepting and using the plan that AB submitted) acted in such a way that demonstrated agreement.If you find that CD either in express language or by (his, her, its) conduct promised that (if AB's plan was used the insurance would be placed through AB), you will find for AB. If you find that neither in express language nor by conduct did CD make such a promise, you will find for CD.If you heed the lesson of | Contracts—ElementsPlaintiff AB seeks to recover damages for breach of contract. AB claims ([state contention, such as:—] AB developed a plan of life insurance coverage for the officers of a group of corporations controlled by defendant CD in reliance on CD's promise that if the plan were used CD would place the insurance through AB). CD admits (that AB presented a plan, that CD used the plan, and that CD placed the insurance through an agent other than AB). However, CD claims that (AB submitted the plan to CD voluntarily, without any promise that CD would place the insurance through AB). The burden is on AB to prove that AB's (preparation and submission of the plan) was rendered in reliance on a promise by CD that (if the plan were used the insurance would be placed through AB).Such a promise need not have been made in express language; it may be implied from the conduct of the parties. It is not enough, however, that AB hoped or expected that if (he, she, it) (prepared and submitted a plan) CD would (place the insurance through AB). To find such a promise, you must find either that CD in express language said that (if AB submitted a plan and it was used, the insurance would be placed through AB) or that before (preparing and submitting the plan) AB made clear to CD that (if AB prepared and submitted a plan and it was used, CD would be expected to place the insurance through AB) and that CD thereafter by (accepting and using the plan that AB submitted) acted in such a way that demonstrated agreement.If you find that CD either in express language or by (his, her, its) conduct promised that (if AB's plan was used the insurance would be placed through AB), you will find for AB. If you find that neither in express language nor by conduct did CD make such a promise, you will find for CD.If you heed the lesson of |
| —that | PJI 4:1—that |
| the charge should be case-specific—and you make use of the lengthy comment following it, 2B | the charge should be case-specific—and you make use of the lengthy comment following it, 2B |
| , | NY PJI2d 4:1, |
| at 2 to 145 (2018), you will soon start to think of the lack of specific NY PJI instructions on your type of case as an opportunity rather than a burden. You will be forced to pin down the specific issue in your case and to formulate an instruction that presents that issue to the fact-finder in a succinct and understandable way. Does this sound familiar? Isn't this what you do when you prepare or oppose a motion for summary | at 2 to 145 (2018), you will soon start to think of the lack of specific NY PJI instructions on your type of case as an opportunity rather than a burden. You will be forced to pin down the specific issue in your case and to formulate an instruction that presents that issue to the fact-finder in a succinct and understandable way. Does this sound familiar? Isn't this what you do when you prepare or oppose a motion for summary |
| judgment? View | judgment?♦ View |
| From The Bench: Most trial judges do not have an inventory of standard jury instructions in contract cases. Judges often look to the lawyers to prepare proposed instructions and verdict sheets unique to the facts and the law of their particular case.Another extremely fact-specific area in which an appropriate instruction will probably not be found in NY PJI is conversion. See | From The Bench: Most trial judges do not have an inventory of standard jury instructions in contract cases. Judges often look to the lawyers to prepare proposed instructions and verdict sheets unique to the facts and the law of their particular case.Another extremely fact-specific area in which an appropriate instruction will probably not be found in NY PJI is conversion. See |
| , | PJI 3:10, for |
| an example of another case-specific instruction (concerning wrongful repossession of a car) which would be unlikely to be applicable in its entirety to many other common cases, such as conversion of the proceeds of sale of collateral for a secured loan. It is easy to spot the potential jury instructions in the Comment following | an example of another case-specific instruction (concerning wrongful repossession of a car) which would be unlikely to be applicable in its entirety to many other common cases, such as conversion of the proceeds of sale of collateral for a secured loan. It is easy to spot the potential jury instructions in the Comment following |
| , | PJI 3:10, |
| 2A | 2A |
| , | NY PJI2d 3:10, |
| at 115 to 130 (2018), for | at 115 to 130 (2018), for |
| example:In | example:•In |
| order to state a cause of action, plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise over or interference with the property in defiance of plaintiff's rights. . . . | order to state a cause of action, plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise over or interference with the property in defiance of plaintiff's rights. . . . |
| .When | Id. at 117.•When |
| funds are provided for a particular purpose, the use of those funds for an unauthorized purpose constitutes conversion. | funds are provided for a particular purpose, the use of those funds for an unauthorized purpose constitutes conversion. |
| .The | Id. at 119.•The |
| intent required is intent to exercise such control over the property as to interfere with plaintiff's use and enjoyment of it. | intent required is intent to exercise such control over the property as to interfere with plaintiff's use and enjoyment of it. |
| .[I]t | Id. at 120.•[I]t |
| is no defense that defendant acted in good faith, or in ignorance of plaintiff's interest in the property, or under the mistaken belief that the property in question was defendant's own, or that the corporation of which defendant was an officer and for which defendant acted had the right to take the action in question. . ., unless the mistake was induced by plaintiff or unless defendant's reasonable belief brings defendant within one of the recognized privileges. . . . Id. | is no defense that defendant acted in good faith, or in ignorance of plaintiff's interest in the property, or under the mistaken belief that the property in question was defendant's own, or that the corporation of which defendant was an officer and for which defendant acted had the right to take the action in question. . ., unless the mistake was induced by plaintiff or unless defendant's reasonable belief brings defendant within one of the recognized privileges. . . . Id. |
| 121.The | 121.•The |
| interference need not constitute a manual taking, nor be for defendant's own use. | interference need not constitute a manual taking, nor be for defendant's own use. |
| .In | Id. at 121.In |
| such cases, there truly is no alternative to learning the law applicable to the facts of your case and making sure the jury instructions reflect that law. Jury instructions will be upheld on appeal if they accurately reflect the law or are applicable to the facts of the case. See, for example, Mix v. Neff, 99 A.D.2d 180, 183, 473 N.Y.S.2d 31 (3d Dep't 1984):[A]n examination of this record shows that the charge to the jury was correct with respect to the imposition upon defendant of the burden of proving the claims of fraud in the inducement and misrepresentation made in his affirmative defense and counterclaim. Since defendant conceded a valid oral contract, plaintiff was relieved of the burden of proving the absence of fraud in the factum attendant execution (Fleming v. Ponziani, 24 N.Y.2d 105, 299 N.Y.S.2d 134, 247 N.E.2d 114, supra; Gilbert v. Rothschild, 280 N.Y. 66, 19 N.E. 785, supra). Since defendant instead argued that the fraud and misrepresentation centered upon the condition of the equipment sold and the presence or absence of written contracts for towing services with Cornell University, the Ithaca Police Department and the United States Post Office and sought rescission and money damages in his counterclaim, the burden of persuasion rested upon defendant as to those allegations (Mangini v. McClurg, 24 N.Y.2d 556, 301 N.Y.S.2d 508, 249 N.E.2d 386, supra; Fleming v. Ponziani, supra; ‘184 Adams v. Gillig, 199 N.Y. 314, 92 N.E. 670, supra). The trial court did, however, err in that portion of its jury instructions dealing with the quantum of proof required to fulfill that burden when it described the burden as “a fair preponderance of the credible evidence.” Although the burden actually requires the “most satisfactory evidence” (Adams v. Gillig, supra, p. 323, 92 N.E. 670), the error here favored defendant by imposition of a lesser standard of proof, and it, therefore, does not require reversal.§ 3:3 Drafting—Special verdicts and verdict sheetsJust as verdict sheets for special verdicts are shortcuts for juries—verbal flow charts, as it were, or quasi-spreadsheets, when the issue is damages, they make for excellent flow charts and checklists for lawyers in planning and understanding their cases. After all, what could be simpler than these special verdict traffic directions:1.Answer this question yes or no.2.If five of you answer yes, stop here and report to the court.3.If five of you answer no, go on to the next question.4.Etc., etc.(See, generally, | such cases, there truly is no alternative to learning the law applicable to the facts of your case and making sure the jury instructions reflect that law. Jury instructions will be upheld on appeal if they accurately reflect the law or are applicable to the facts of the case. See, for example, Mix v. Neff, 99 A.D.2d 180, 183, 473 N.Y.S.2d 31 (3d Dep't 1984):[A]n examination of this record shows that the charge to the jury was correct with respect to the imposition upon defendant of the burden of proving the claims of fraud in the inducement and misrepresentation made in his affirmative defense and counterclaim. Since defendant conceded a valid oral contract, plaintiff was relieved of the burden of proving the absence of fraud in the factum attendant execution (Fleming v. Ponziani, 24 N.Y.2d 105, 299 N.Y.S.2d 134, 247 N.E.2d 114, supra; Gilbert v. Rothschild, 280 N.Y. 66, 19 N.E. 785, supra). Since defendant instead argued that the fraud and misrepresentation centered upon the condition of the equipment sold and the presence or absence of written contracts for towing services with Cornell University, the Ithaca Police Department and the United States Post Office and sought rescission and money damages in his counterclaim, the burden of persuasion rested upon defendant as to those allegations (Mangini v. McClurg, 24 N.Y.2d 556, 301 N.Y.S.2d 508, 249 N.E.2d 386, supra; Fleming v. Ponziani, supra; ‘184 Adams v. Gillig, 199 N.Y. 314, 92 N.E. 670, supra). The trial court did, however, err in that portion of its jury instructions dealing with the quantum of proof required to fulfill that burden when it described the burden as “a fair preponderance of the credible evidence.” Although the burden actually requires the “most satisfactory evidence” (Adams v. Gillig, supra, p. 323, 92 N.E. 670), the error here favored defendant by imposition of a lesser standard of proof, and it, therefore, does not require reversal.§ 3:3 Drafting—Special verdicts and verdict sheetsJust as verdict sheets for special verdicts are shortcuts for juries—verbal flow charts, as it were, or quasi-spreadsheets, when the issue is damages, they make for excellent flow charts and checklists for lawyers in planning and understanding their cases. After all, what could be simpler than these special verdict traffic directions:1.Answer this question yes or no.2.If five of you answer yes, stop here and report to the court.3.If five of you answer no, go on to the next question.4.Etc., etc.(See, generally, |
| .)Or | PJI 1:97.)Or |
| this verbal spreadsheet template:1. What was the agreed contract price?At least five jurors must agree on the answer to this question.Amount $—————2. What payments, if any, did the defendant make to the plaintiff?At least five jurors must agree on the answer to this question.Amount $—————3. What costs would the plaintiff have incurred if plaintiff had been permitted to complete the work?At least five jurors must agree on the answer to this question.Amount $—————Special Verdict Form | this verbal spreadsheet template:1. What was the agreed contract price?At least five jurors must agree on the answer to this question.Amount $—————2. What payments, if any, did the defendant make to the plaintiff?At least five jurors must agree on the answer to this question.Amount $—————3. What costs would the plaintiff have incurred if plaintiff had been permitted to complete the work?At least five jurors must agree on the answer to this question.Amount $—————Special Verdict Form |
| PJI 4:20 |
| SV (2B | SV (2B |
| , | NY PJI2d 4:20, |
| at 197 to 198 (2018)).When you have the type of case that calls for a special verdict, it will be helpful to find it in NY PJI and study it earlier rather than later, so that you know exactly what the jury will need to decide in your favor, or to make a proper award of damages.Special Verdict forms can sometimes be converted to flow charts, such as the following, adapted from the Special Verdict form | at 197 to 198 (2018)).When you have the type of case that calls for a special verdict, it will be helpful to find it in NY PJI and study it earlier rather than later, so that you know exactly what the jury will need to decide in your favor, or to make a proper award of damages.Special Verdict forms can sometimes be converted to flow charts, such as the following, adapted from the Special Verdict form |
| ( | (PJI 3:23B |
| SV) following the pattern instruction for defamation of a private person in a private matter, 2A | SV) following the pattern instruction for defamation of a private person in a private matter, 2A |
| , | NY PJI2d 3:23B, |
| at 283 to 285 (2018): The above diagram drawn from a NY PJI Special Verdict form might be a good one to put in the front of your trial notebook if you have this type of case.So, you should be aware that NY PJI enables you to anticipate when you will be using special verdict forms; it gives you the verdict sheets so that you can, at least, have them ready for trial to include with your packet of proposed charges, and, at best, use them for planning purposes.§ 3:4 Practical considerations—Preservation of the recordIf your original request to charge is rejected—or accepted with modifications—will your original request be enough to preserve your view for appeal? Although an experienced trial lawyer might know the answer immediately, other readers of NY PJI will be comforted to know that this, too, is addressed in NY PJI. See 1A | at 283 to 285 (2018): The above diagram drawn from a NY PJI Special Verdict form might be a good one to put in the front of your trial notebook if you have this type of case.So, you should be aware that NY PJI enables you to anticipate when you will be using special verdict forms; it gives you the verdict sheets so that you can, at least, have them ready for trial to include with your packet of proposed charges, and, at best, use them for planning purposes.§ 3:4 Practical considerations—Preservation of the recordIf your original request to charge is rejected—or accepted with modifications—will your original request be enough to preserve your view for appeal? Although an experienced trial lawyer might know the answer immediately, other readers of NY PJI will be comforted to know that this, too, is addressed in NY PJI. See 1A |
| , | NY PJI3d 1:1, |
| at 5 to 7 (2018) (citation omitted).Does the charge conference itself need to be recorded? What if the judge modifies a charge after the charge conference but before you give your summation? Do arguments about jury instructions always need to be outside the presence of the jury? How does the jury charge affect the law of the case? Is your objection preserved if you object to the charge but not the special verdict form?Does failure to properly preserve your objection knock you completely out of the box on appeal or rehearing?All these points are addressed by the Committee at 1A NY PJI3d 1:1, at 1 to 14 (2018), in a comment (“General Principles—Introductory Statement”) | at 5 to 7 (2018) (citation omitted).Does the charge conference itself need to be recorded? What if the judge modifies a charge after the charge conference but before you give your summation? Do arguments about jury instructions always need to be outside the presence of the jury? How does the jury charge affect the law of the case? Is your objection preserved if you object to the charge but not the special verdict form?Does failure to properly preserve your objection knock you completely out of the box on appeal or rehearing?All these points are addressed by the Committee at 1A NY PJI3d 1:1, at 1 to 14 (2018), in a comment (“General Principles—Introductory Statement”) |
| covering:The | covering:•The |
| Need for Clarity and | Need for Clarity and |
| PrecisionElements | Precision•Elements |
| of the Charge (identification of the parties; statement of their contentions; statement of the issues raised by those contentions and what jury must find in order to find for plaintiff; explanation of the processes of decision; how damages are computed; form of | of the Charge (identification of the parties; statement of their contentions; statement of the issues raised by those contentions and what jury must find in order to find for plaintiff; explanation of the processes of decision; how damages are computed; form of |
| verdict)Reviewing | verdict)•Reviewing |
| the | the |
| EvidenceRequests | Evidence•Requests |
| to | to |
| ChargeInquiry | Charge•Inquiry |
| by the | by the |
| JuryInconsistencies | Jury•Inconsistencies |
| in the Verdict§ 3:5 Practical considerations—Post-chargeA. Juror questionsHow to interact with jurors after the charge has been given by the court is a subject of interest to the Committee and practitioners which is covered in NY PJI.When, in response to an inquiry from the jurors, should the court read back the entire charge as opposed to just a part of it? Should the court embellish a charge if it appears that it was not initially understood? Do counsel always have to be present when the court interacts with the jury? Can the judge delegate any authority to his or her law secretary? What if the jury reaches a verdict while a question is still pending?These issues are discussed at 1A | in the Verdict§ 3:5 Practical considerations—Post-chargeA. Juror questionsHow to interact with jurors after the charge has been given by the court is a subject of interest to the Committee and practitioners which is covered in NY PJI.When, in response to an inquiry from the jurors, should the court read back the entire charge as opposed to just a part of it? Should the court embellish a charge if it appears that it was not initially understood? Do counsel always have to be present when the court interacts with the jury? Can the judge delegate any authority to his or her law secretary? What if the jury reaches a verdict while a question is still pending?These issues are discussed at 1A |
| , | NY PJI3d 1:1, |
| at 10 to 14 (2018).B. Supplemental instructionsNY PJI and the Committee recognize that jury instructions, pattern or otherwise, will not always work as intended and the court may commit error. Erroneous jury charges must be corrected “in such explicit terms as to preclude the inference that the jury might have been influenced by it.” 1A | at 10 to 14 (2018).B. Supplemental instructionsNY PJI and the Committee recognize that jury instructions, pattern or otherwise, will not always work as intended and the court may commit error. Erroneous jury charges must be corrected “in such explicit terms as to preclude the inference that the jury might have been influenced by it.” 1A |
| , | NY PJI3d 1:102, |
| at 222 (2018), citing Smulczeski v. City Center of Music & Drama, Inc., 3 N.Y.2d 498, 169 N.Y.S.2d 1, 146 N.E.2d 769 (1957). Language to use in correcting an erroneous charge is set forth in | at 222 (2018), citing Smulczeski v. City Center of Music & Drama, Inc., 3 N.Y.2d 498, 169 N.Y.S.2d 1, 146 N.E.2d 769 (1957). Language to use in correcting an erroneous charge is set forth in |
| .Deadlocked | PJI 1:101.Deadlocked |
| juries present more complicated problems. CPLR 4113(b) provides that a jury may be “kept together for as long as is deemed reasonable by the court,” after which the jury will be discharged and a new trial ordered. In the meantime, a court may elect to prod the jurors along—possibly using a pattern instruction such as | juries present more complicated problems. CPLR 4113(b) provides that a jury may be “kept together for as long as is deemed reasonable by the court,” after which the jury will be discharged and a new trial ordered. In the meantime, a court may elect to prod the jurors along—possibly using a pattern instruction such as |
| , | PJI 1:100, but |
| coercive language must be avoided and a court's instruction should balance the importance of keeping an open mind with the importance of not surrendering one's consciously-held beliefs; these issues are thoroughly discussed at 1A | coercive language must be avoided and a court's instruction should balance the importance of keeping an open mind with the importance of not surrendering one's consciously-held beliefs; these issues are thoroughly discussed at 1A |
| , | NY PJI3d 1:100, |
| at 219 to 221 (2018).Part IIParticular Types of Cases; with Finding Aids and Sample ChargesChapter 4Negligence/Motor Vehicle AccidentsA. Finding The Applicable Law and Instructions§ 4:1NY PJI TablesB. Illustrative Cases§ 4:2Motor vehicle negligence/Personal injury: wrist and shoulder fractures; body lacerations; permanent scarring/One plaintiff; bus company and driver are defendants§ 4:3Motor vehicle negligence: Collision; merging traffic/Personal injury: facial scarring, jaw injuries, knee injury/One motorcyclist plaintiff, one individual and one corporate defendant§ 4:4Motor vehicle negligence: bicycle colliding with taxicab/Personal injury: clavicle fracture/One plaintiff, one corporate defendant and others§ 4:5Motor vehicle negligence, negligent maintenance of roadway; personal injury: crushed leg/One plaintiff, multiple defendants§ 4:6Motor vehicle negligence/Personal injury: herniated disc, loss of services/Two plaintiffs, one defendant§ 4:7Motor vehicle negligence/Personal injury: reflex sympathetic dystrophy syndrome (RSD)/One plaintiff, one defendant§ 4:8Motor vehicle negligence/Personal injury: two cervical herniated discs and one lumbar herniated disc/One plaintiff, defendants consisting of town and an individual, presumably the truck driver§ 4:9Motor vehicle and utility company negligence/Personal injury: compression fracture and herniated disc/Two plaintiffs; two corporate defendants, one government defendant, two individual defendants§ 4:10Motor vehicle negligence/Personal injury: herniated disc, complicated by MS/Two plaintiffs; one individual and one governmental defendant§ 4:11Motor vehicle negligence: pedestrian struck by taxi/Personal injury: head injuries and cognitive difficulties/One plaintiff-guardian on behalf of infant; one corporate and one individual defendant§ 4:12Motor vehicle negligence: bus hitting pedestrian/Personal injury: foot and elbow fractures, torn ligaments in arm/One plaintiff, two governmental defendants§ 4:13Motor vehicle negligence: broadside collision; stop sign/Personal injury: disc herniations, torn shoulder tendon/One plaintiff, one individual and one corporate defendant§ 4:14Motor vehicle negligence: motorcyclist struck by automobile/Personal injury: shoulder dislocation§ 4:15Motor vehicle negligence/Personal injury: rear-end collision/One plaintiff; bus company and driver are defendants§ 4:16Motor vehicle negligence: no-fault law§ 4:17Motor vehicle negligence: no-fault law; rear-end collision§ 4:18Motor vehicle negligence: no-fault law; rear-end collision with stationary disabled car seriously injuring pedestrian offering assistance§ 4:19Motor vehicle negligence; damages only; ricochet; wrong way on one-way streetAppendix 4A. Outline of PJI Comments for Negligence/Motor Vehicle AccidentsKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 4:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Negligence and Motor Vehicle Accidents, and is followed by Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added:Negligence Actions | at 219 to 221 (2018).Part IIParticular Types of Cases; with Finding Aids and Sample ChargesChapter 4Negligence/Motor Vehicle AccidentsA. Finding The Applicable Law and Instructions§ 4:1NY PJI TablesB. Illustrative Cases§ 4:2Motor vehicle negligence/Personal injury: wrist and shoulder fractures; body lacerations; permanent scarring/One plaintiff; bus company and driver are defendants§ 4:3Motor vehicle negligence: Collision; merging traffic/Personal injury: facial scarring, jaw injuries, knee injury/One motorcyclist plaintiff, one individual and one corporate defendant§ 4:4Motor vehicle negligence: bicycle colliding with taxicab/Personal injury: clavicle fracture/One plaintiff, one corporate defendant and others§ 4:5Motor vehicle negligence, negligent maintenance of roadway; personal injury: crushed leg/One plaintiff, multiple defendants§ 4:6Motor vehicle negligence/Personal injury: herniated disc, loss of services/Two plaintiffs, one defendant§ 4:7Motor vehicle negligence/Personal injury: reflex sympathetic dystrophy syndrome (RSD)/One plaintiff, one defendant§ 4:8Motor vehicle negligence/Personal injury: two cervical herniated discs and one lumbar herniated disc/One plaintiff, defendants consisting of town and an individual, presumably the truck driver§ 4:9Motor vehicle and utility company negligence/Personal injury: compression fracture and herniated disc/Two plaintiffs; two corporate defendants, one government defendant, two individual defendants§ 4:10Motor vehicle negligence/Personal injury: herniated disc, complicated by MS/Two plaintiffs; one individual and one governmental defendant§ 4:11Motor vehicle negligence: pedestrian struck by taxi/Personal injury: head injuries and cognitive difficulties/One plaintiff-guardian on behalf of infant; one corporate and one individual defendant§ 4:12Motor vehicle negligence: bus hitting pedestrian/Personal injury: foot and elbow fractures, torn ligaments in arm/One plaintiff, two governmental defendants§ 4:13Motor vehicle negligence: broadside collision; stop sign/Personal injury: disc herniations, torn shoulder tendon/One plaintiff, one individual and one corporate defendant§ 4:14Motor vehicle negligence: motorcyclist struck by automobile/Personal injury: shoulder dislocation§ 4:15Motor vehicle negligence/Personal injury: rear-end collision/One plaintiff; bus company and driver are defendants§ 4:16Motor vehicle negligence: no-fault law§ 4:17Motor vehicle negligence: no-fault law; rear-end collision§ 4:18Motor vehicle negligence: no-fault law; rear-end collision with stationary disabled car seriously injuring pedestrian offering assistance§ 4:19Motor vehicle negligence; damages only; ricochet; wrong way on one-way streetAppendix 4A. Outline of PJI Comments for Negligence/Motor Vehicle AccidentsKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 4:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Negligence and Motor Vehicle Accidents, and is followed by Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added:Negligence Actions |
| [ | [PJI 2:10 |
| to | to |
| ](NY | 2:88G](NY |
| PJI Volume 1A)A.Common Law Standard of Care1.Negligence defined (2:10, 2:11)2.Foreseeability (2:12, 2:13)3.Emergency situation (2:14)4.Defendant having special knowledge (2:15)5.Customary business practice (2:16)6.Care required of persons under disability (2:20–2:24)B.Statutory Standard of CareC.Plaintiff's Negligence1.Comparative fault (2:36)2.Comparative Negligence—Emergency Situation (2:41, 2:42)3.Persons Under Disabilitya.Intoxicated Person (2:45)b.Mental Deficiency (2:46)c.Aged or Physically Disabled Person (2:47)d.Infants (2:48, 2:49)D.Assumption of Risk (2:55, 2:56)E.Res Ipsa Loquitur (2:65)F.Proximate Cause (2:70–2:72)G.Specific Negligence Actions — Motor Vehicle Accidents [with Introduction] | PJI Volume 1A)A.Common Law Standard of Care1.Negligence defined (2:10, 2:11)2.Foreseeability (2:12, 2:13)3.Emergency situation (2:14)4.Defendant having special knowledge (2:15)5.Customary business practice (2:16)6.Care required of persons under disability (2:20–2:24)B.Statutory Standard of CareC.Plaintiff's Negligence1.Comparative fault (2:36)2.Comparative Negligence—Emergency Situation (2:41, 2:42)3.Persons Under Disabilitya.Intoxicated Person (2:45)b.Mental Deficiency (2:46)c.Aged or Physically Disabled Person (2:47)d.Infants (2:48, 2:49)D.Assumption of Risk (2:55, 2:56)E.Res Ipsa Loquitur (2:65)F.Proximate Cause (2:70–2:72)G.Specific Negligence Actions — Motor Vehicle Accidents [with Introduction] |
| [ | [PJI 2:75 |
| to | to |
| ]a.Motorist-Pedestrian | 2:88G]a.Motorist-Pedestrian |
| [2:75–2:76A]b.Motorist-Motorist [2:77-285A](1)Duty Toward Other Motorists, In General [2:77](2)At Intersection [2:78–2:80B](3)Turning Across Traffic [2:81](4)Rear End Collisions [2:82](5)Close Following [2:82A](6)Sudden Stopping [2:83](7)Skidding [2:84](8)Car Leaving Road [2:85](9)Falling Asleep At The Wheel [2:85A]c.Motorist's Duty Re Maintenance [2:86]d.Comparative Negligence of Passenger [2:87]e.Serious Injury Under the No-Fault Law [with Introduction] [2:88A–2:88G]Historical Revision Notes:In 2004, | [2:75–2:76A]b.Motorist-Motorist [2:77-285A](1)Duty Toward Other Motorists, In General [2:77](2)At Intersection [2:78–2:80B](3)Turning Across Traffic [2:81](4)Rear End Collisions [2:82](5)Close Following [2:82A](6)Sudden Stopping [2:83](7)Skidding [2:84](8)Car Leaving Road [2:85](9)Falling Asleep At The Wheel [2:85A]c.Motorist's Duty Re Maintenance [2:86]d.Comparative Negligence of Passenger [2:87]e.Serious Injury Under the No-Fault Law [with Introduction] [2:88A–2:88G]Historical Revision Notes:In 2004, |
| PJI 2:79A |
| was added.In 2005, | was added.In 2005, |
| , , | PJI 1:90, 1:90.1, |
| and | and |
| 1:90.2 |
| were revised.In 2006, | were revised.In 2006, |
| PJI 1:90.3 |
| was added.In 2007, | was added.In 2007, |
| , , , , | PJI 2:16, 2:36, 2:36.1, 2:36.2, |
| and | and |
| 2:82 |
| were revised, and | were revised, and |
| PJI 2:82A |
| was added.In 2009, | was added.In 2009, |
| PJI 2:13 |
| and | and |
| 2:27 |
| were revised.In 2010, | were revised.In 2010, |
| , | PJI 2:70, 2:76 |
| and | and |
| 2:76A |
| were revised.In 2011, | were revised.In 2011, |
| PJI 2:55 |
| and | and |
| 2:88A |
| to | to |
| 2:88G |
| were revised (2:88E and 2:88F were switched with each other), and | were revised (2:88E and 2:88F were switched with each other), and |
| PJI 2:55.1 |
| was added.In 2013, | was added.In 2013, |
| PJI 2:75 |
| was revised.In 2015, | was revised.In 2015, |
| , , | PJI 1:90, 1:90.1, |
| and | and |
| 1:90.2 |
| were revised.B. Illustrative Cases§ 4:2 Motor vehicle negligence/Personal injury: wrist and shoulder fractures; body lacerations; permanent scarring/One plaintiff; bus company and driver are defendantsA. BackgroundType of Case: Motor Vehicle Negligence (bus and motorcycle)Type of Injury: Wrist fractures that required multiple surgeries and bone grafting and internal fixation of left wrist and permanent impairment of both wrists; right shoulder fracture; crushed pinky finger; lacerations to the body resulting in permanent scarring, multiple contusions and abrasionsCase Name: Michael W. Muff, Plaintiff, v. Lallave Transportation, Inc., Victorina Lallave, d/b/a Lallave Transportation, Inc. and Claudia Sessions, a/k/a Jacklyn Sessions, DefendantsCourt: Supreme Court of New York, Saratoga CountyJudge: Angelo D. LomantoDocket Number: 3359/00Verdict Date: February, 2003Outcome: Total verdict of $879,968Brief Summary of Facts: A motorcycle driver suffered bilateral wrist fractures that required multiple surgeries and bone grafting and internal fixation of his left wrist and permanent impairment of both wrists, a right shoulder fracture, a crushed pinky finger, lacerations to his body that resulted in permanent scarring, and multiple contusions and abrasions when his southbound motorcycle collided with the defendant's bus, which was operated by the female codefendant, when the codefendant merged onto an interstate highway and into the plaintiff's lane of travel. The plaintiff contended that the codefendant negligently merged into his lane of travel at an excessively slow rate of speed, that the codefendant failed to accelerate the vehicle in a timely fashion, that she failed to activate her hazard lights, failed to keep a proper lookout, failed to maintain control of the vehicle, and operated the vehicle in a negligent manner. The defendants denied liability and contended that the plaintiff was comparatively negligent for failing to keep a proper lookout and driving at an excessive rate of speed. The plaintiff underwent 100 sessions of physical therapy. The defendant filed an appeal. The verdict was affirmed on appeal.B. Jury Instructions Given by the | were revised.B. Illustrative Cases§ 4:2 Motor vehicle negligence/Personal injury: wrist and shoulder fractures; body lacerations; permanent scarring/One plaintiff; bus company and driver are defendantsA. BackgroundType of Case: Motor Vehicle Negligence (bus and motorcycle)Type of Injury: Wrist fractures that required multiple surgeries and bone grafting and internal fixation of left wrist and permanent impairment of both wrists; right shoulder fracture; crushed pinky finger; lacerations to the body resulting in permanent scarring, multiple contusions and abrasionsCase Name: Michael W. Muff, Plaintiff, v. Lallave Transportation, Inc., Victorina Lallave, d/b/a Lallave Transportation, Inc. and Claudia Sessions, a/k/a Jacklyn Sessions, DefendantsCourt: Supreme Court of New York, Saratoga CountyJudge: Angelo D. LomantoDocket Number: 3359/00Verdict Date: February, 2003Outcome: Total verdict of $879,968Brief Summary of Facts: A motorcycle driver suffered bilateral wrist fractures that required multiple surgeries and bone grafting and internal fixation of his left wrist and permanent impairment of both wrists, a right shoulder fracture, a crushed pinky finger, lacerations to his body that resulted in permanent scarring, and multiple contusions and abrasions when his southbound motorcycle collided with the defendant's bus, which was operated by the female codefendant, when the codefendant merged onto an interstate highway and into the plaintiff's lane of travel. The plaintiff contended that the codefendant negligently merged into his lane of travel at an excessively slow rate of speed, that the codefendant failed to accelerate the vehicle in a timely fashion, that she failed to activate her hazard lights, failed to keep a proper lookout, failed to maintain control of the vehicle, and operated the vehicle in a negligent manner. The defendants denied liability and contended that the plaintiff was comparatively negligent for failing to keep a proper lookout and driving at an excessive rate of speed. The plaintiff underwent 100 sessions of physical therapy. The defendant filed an appeal. The verdict was affirmed on appeal.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles Stated(modified—transcript page 991—The court omits: “You are not to ask anyone else about the law. You should not consider or accept any advice about the law from anyone else but me.” The court adds a statement from | Review Principles Stated(modified—transcript page 991—The court omits: “You are not to ask anyone else about the law. You should not consider or accept any advice about the law from anyone else but me.” The court adds a statement from |
| PJI 1:6 |
| about the irrelevancy of the judge's views. The court adds:)I do not intend to review the evidence. Your collective recollection of the evidence is certainly better than mine, and in any event, it is your recollection that controls and not mine. There has been sufficient comment by the attorneys in summation in this | about the irrelevancy of the judge's views. The court adds:)I do not intend to review the evidence. Your collective recollection of the evidence is certainly better than mine, and in any event, it is your recollection that controls and not mine. There has been sufficient comment by the attorneys in summation in this |
| regard.3. . | regard.3. PJI 1:6. |
| Function of Court and Jury (modified—transcript page 990—The court adds statement about irrelevancy of the judge's views within | Function of Court and Jury (modified—transcript page 990—The court adds statement about irrelevancy of the judge's views within |
| , | PJI 1:21, |
| stating:)My views being completely irrelevant to your determination in any | stating:)My views being completely irrelevant to your determination in any |
| event.4. . | event.4. PJI 1:91. |
| Interested Witness—Generally (modified—transcript page 991—The court substitutes the word “credible” for “believable,” and “colored” for | Interested Witness—Generally (modified—transcript page 991—The court substitutes the word “credible” for “believable,” and “colored” for |
| “influenced.”)5. . | “influenced.”)5. PJI 1:90. |
| General Instruction—Expert Witness (modified—transcript 992—The court added the following specifics:)You will recall that the witnesses Dennis Toaspern, the accident reconstruction expert; Doctor Richard Whipple, the orthopedic surgeon specializing in hand surgery; Nicole Gorski Duursena, the physical therapist, and C. Bruce Gambardella, the accident reconstruction expert, all testified concerning their qualifications as experts in the fields that I have just | General Instruction—Expert Witness (modified—transcript 992—The court added the following specifics:)You will recall that the witnesses Dennis Toaspern, the accident reconstruction expert; Doctor Richard Whipple, the orthopedic surgeon specializing in hand surgery; Nicole Gorski Duursena, the physical therapist, and C. Bruce Gambardella, the accident reconstruction expert, all testified concerning their qualifications as experts in the fields that I have just |
| mentioned.6. . | mentioned.6. PJI 1:22. |
| Falsus in Uno (modified—transcript page 994—The court does not define “material fact” as an “important matter;” rather than “unbelievable,” the court uses “unworthy of | Falsus in Uno (modified—transcript page 994—The court does not define “material fact” as an “important matter;” rather than “unbelievable,” the court uses “unworthy of |
| belief.”)7. . | belief.”)7. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different Issues. (modified—transcript pages 994 to 995—The court omits: “The defendant claims that (he, she) did not cause the (accident or occurrence) but that the plaintiff did, and the defendant says that even if (he, she) did, the plaintiff also caused the (accident or | General Instruction—Burden of Proof—When Burden Differs on Different Issues. (modified—transcript pages 994 to 995—The court omits: “The defendant claims that (he, she) did not cause the (accident or occurrence) but that the plaintiff did, and the defendant says that even if (he, she) did, the plaintiff also caused the (accident or |
| occurrence).”)8. . | occurrence).”)8. PJI 1:25. |
| Consider Only Testimony and Exhibits (modified—transcript page 996—The Court adds the following regarding testimony that may be considered:). . .both the direct testimony and the cross-examination and the videotape that you saw the other | Consider Only Testimony and Exhibits (modified—transcript page 996—The Court adds the following regarding testimony that may be considered:). . .both the direct testimony and the cross-examination and the videotape that you saw the other |
| day.9. . | day.9. PJI 1:25A. |
| Juror's Use of Professional Expertise. (modified—transcript page 996—The Court used a shorter version, omitting mention of “professional expertise”:)You the Members of the Jury must deal with the facts in this case as they have been disclosed from the witness stand and the exhibits and you must not go outside the evidence as it was presented to you in this | Juror's Use of Professional Expertise. (modified—transcript page 996—The Court used a shorter version, omitting mention of “professional expertise”:)You the Members of the Jury must deal with the facts in this case as they have been disclosed from the witness stand and the exhibits and you must not go outside the evidence as it was presented to you in this |
| courtroom.10. . | courtroom.10. PJI 1:24. |
| Return to Courtroom. (modified—transcript page 997—The Court substitutes “it is your privilege, if you so desire” for “you have the right;” The Court adds:)Should that occur, through your foreperson, send us a note on the papers and pencils that will be provided to you as to what you want read back, and try to be as specific as possible as to what you want to | Return to Courtroom. (modified—transcript page 997—The Court substitutes “it is your privilege, if you so desire” for “you have the right;” The Court adds:)Should that occur, through your foreperson, send us a note on the papers and pencils that will be provided to you as to what you want read back, and try to be as specific as possible as to what you want to |
| hear.11. . | hear.11. PJI 1:26. |
| Five-Sixths Verdict. (modified—transcript page 997—The Court adds:). . .and to assist you in reaching your verdict, you will be given a verdict | Five-Sixths Verdict. (modified—transcript page 997—The Court adds:). . .and to assist you in reaching your verdict, you will be given a verdict |
| sheet.12. . | sheet.12. PJI 1:97. |
| General Instruction—Special Verdicts (modified—transcript page 997—The Court omits description of questions and also omits: “and each juror will sign in the appropriate place to indicate (his, her) agreement or disagreement.” The Court adds:)Answer the questions in the order they are given to you and follow the instructions on the verdict | General Instruction—Special Verdicts (modified—transcript page 997—The Court omits description of questions and also omits: “and each juror will sign in the appropriate place to indicate (his, her) agreement or disagreement.” The Court adds:)Answer the questions in the order they are given to you and follow the instructions on the verdict |
| sheet.13. . | sheet.13. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally14. . | Defined—Generally14. PJI 2:12. |
| Common Law Standard of Care—Foreseeability—Generally (modified—transcript page 999—The Court generally substitutes “accident” for “injury”.)Author's Comment: Although the substitution of “accident” for “injury” in a foreseeability instruction would appear to be a change in the legal standard, it is arguably harmless in this case involving a collision with a motorcycle at highway | Common Law Standard of Care—Foreseeability—Generally (modified—transcript page 999—The Court generally substitutes “accident” for “injury”.)Author's Comment: Although the substitution of “accident” for “injury” in a foreseeability instruction would appear to be a change in the legal standard, it is arguably harmless in this case involving a collision with a motorcycle at highway |
| speed.15. . | speed.15. PJI 2:36. |
| Comparative Fault (The Court substitutes the word “negligence” for | Comparative Fault (The Court substitutes the word “negligence” for |
| “fault.”)16. . | “fault.”)16. PJI 2:77. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, In | Motor Vehicle Accidents—Duty Toward Other Motorists, In |
| General17. . | General17. PJI 2:77.1. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental | Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental |
| Instruction]18. . | Instruction]18. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (transcript pages 1002 to 1003—The Court reads Sections 1143, 1181A, 1129A, 1180A and 1180G of the Vehicle and Traffic | Statutory Standard of Care—Vehicle and Traffic Law Violation (transcript pages 1002 to 1003—The Court reads Sections 1143, 1181A, 1129A, 1180A and 1180G of the Vehicle and Traffic |
| Law.)19. . | Law.)19. PJI 2:25. |
| Statutory Standard of Care—Statute of General | Statutory Standard of Care—Statute of General |
| Application.20. . Damages—General.21. . | Application.20. PJI 2:277. Damages—General.21. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering (modified—transcript page 1005—The Court specifies “past and future” pain and suffering; The Court adds:)That amount shall include the amount awarded for the injuries suffered and for the permanent effect of the injury, if any, caused by the | Damages—Personal Injury—Injury and Pain and Suffering (modified—transcript page 1005—The Court specifies “past and future” pain and suffering; The Court adds:)That amount shall include the amount awarded for the injuries suffered and for the permanent effect of the injury, if any, caused by the |
| Defendant.22. . | Defendant.22. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (modified—transcript page 1005—The Court adds after “suffering to date”:)and to be incurred in the | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (modified—transcript page 1005—The Court adds after “suffering to date”:)and to be incurred in the |
| future.23. . | future.23. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (modified—transcript page 1007—The Court adds specifics of the case:)I now charge you the evidence shows that the Plaintiff has medical expenses as evidenced by lien filed in the amount of $65,273.72. That amount is evidenced by Plaintiff's Exhibit Number 23 in evidence which shows that there is a lien in this case for $65,273.72. That means that the Plaintiff would have to pay that money to the company that is owed the lien.Not to confuse you, you will recall that Dr. Whipple testified that they were paid $18,447. That amount is contained in the lien so that is not a duplication. This is by way of explanation.As part of some of the stipulated damages to which the attorneys agreed, they stipulated that there were bills to Albany Medical Center of $17,501.33; St. Peter's Hospital of $6,448.18; orthopedic balance of $6,488.12; lost wages of $10,708.50; unreimbursed travel expenses of $1,386.24; and anesthesia charges $2,800.The ones that have been stipulated to amount to approximately $51,684.63. There is a differential between that and the filed lien, and it is up to you Members of the Jury to determine what amounts, if any, you will award to the Plaintiff. These items again will show up on the verdict sheet when we go through | Damages—Personal Injury—Expenses Incurred (modified—transcript page 1007—The Court adds specifics of the case:)I now charge you the evidence shows that the Plaintiff has medical expenses as evidenced by lien filed in the amount of $65,273.72. That amount is evidenced by Plaintiff's Exhibit Number 23 in evidence which shows that there is a lien in this case for $65,273.72. That means that the Plaintiff would have to pay that money to the company that is owed the lien.Not to confuse you, you will recall that Dr. Whipple testified that they were paid $18,447. That amount is contained in the lien so that is not a duplication. This is by way of explanation.As part of some of the stipulated damages to which the attorneys agreed, they stipulated that there were bills to Albany Medical Center of $17,501.33; St. Peter's Hospital of $6,448.18; orthopedic balance of $6,488.12; lost wages of $10,708.50; unreimbursed travel expenses of $1,386.24; and anesthesia charges $2,800.The ones that have been stipulated to amount to approximately $51,684.63. There is a differential between that and the filed lien, and it is up to you Members of the Jury to determine what amounts, if any, you will award to the Plaintiff. These items again will show up on the verdict sheet when we go through |
| it.24. . | it.24. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (modified—transcript pages 1007 to 1009—The Court modifies the pattern instruction as follows:)Now, should you award amounts for damages that Plaintiff will incur in the future, you must determine the period of years for which those amounts are intended to provide compensation, and the amount you fix must represent the full amount awarded to Plaintiff for that item of damage for that future period.I charge you that any amount awarded for past damages and future damages is to be fixed without reduction to present value or adjustment for comparative negligence.Now, if you find that any of the Plaintiff's injuries are permanent, you must make such allowance in your verdict as you think that circumstance warrants taking into consideration the period of time that has elapsed from the date of the injury to the present time, and the period of time Plaintiff can be expected to live.In this connection, it is pointed out to you that Plaintiff can be expected to live for 39 more years, that is, until age 77 according to the most recent life expectancy tables published by the United States government.Such tables are, of course, nothing more than statistical averages. They neither assure the span of life I have given you nor assure that the span of the Plaintiff's life will not be greater.(This part tracks the pattern instruction:)The life expectancy figure I have given you is not binding upon you but may be considered by you, together with your own experience and the evidence you have heard concerning the condition of the Plaintiff's health, his habits, employment and activities in determining what the Plaintiff's present life expectancy | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (modified—transcript pages 1007 to 1009—The Court modifies the pattern instruction as follows:)Now, should you award amounts for damages that Plaintiff will incur in the future, you must determine the period of years for which those amounts are intended to provide compensation, and the amount you fix must represent the full amount awarded to Plaintiff for that item of damage for that future period.I charge you that any amount awarded for past damages and future damages is to be fixed without reduction to present value or adjustment for comparative negligence.Now, if you find that any of the Plaintiff's injuries are permanent, you must make such allowance in your verdict as you think that circumstance warrants taking into consideration the period of time that has elapsed from the date of the injury to the present time, and the period of time Plaintiff can be expected to live.In this connection, it is pointed out to you that Plaintiff can be expected to live for 39 more years, that is, until age 77 according to the most recent life expectancy tables published by the United States government.Such tables are, of course, nothing more than statistical averages. They neither assure the span of life I have given you nor assure that the span of the Plaintiff's life will not be greater.(This part tracks the pattern instruction:)The life expectancy figure I have given you is not binding upon you but may be considered by you, together with your own experience and the evidence you have heard concerning the condition of the Plaintiff's health, his habits, employment and activities in determining what the Plaintiff's present life expectancy |
| is.24. . | is.24. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Regarding income taxes)25. (Transcript pages 1009 to 1013: Review of the verdict sheet)Members of the Jury, the controlling verdict sheet in the jury deliberation will be the jury sheet in the possession of the foreperson, and I'll get into that in a minute.The first question on the verdict sheet is was the Defendant, Claudia J. Sessions, negligent.Five of you have to agree. Yes or no. Or six of you can agree. If only four of you agree, you don't have a verdict. You must have at least five people agree. The next line tells you that.Then if there's five of you agree and one does not agree, then the name of the dissenting juror must be recorded on that line provided there.If you look at the instructions after that, it says if your answer is no, then you proceed no further and you report your verdict to the Court.If your answer is yes, then you go to Question 2.Question 2 is was the Defendant, Claudia J. Sessions', negligence a substantial factor in causing the accident. You answer that question yes or no.Again, the dissenter on the line provided.If your answer to Question 2 is no, then you go no further and report to the Court.Then if your answer is yes, you go to Question 3.This brings up whether or not the Plaintiff was negligent. Five of you have to agree there.If your answer to Question 3 is no, then you jump to Question 6.If your answer is yes, you go to Question 4.Was his negligence a substantial factor in causing the accident.If you answered that question no, you then go to Question 6.If you answer it yes, then you must go to Question 5.That is what I charged you about on comparative negligence and apportionment. That question asks what was the percentage of fault of the Defendant. What was the percentage of fault of the Plaintiff. There's a line provided for the recording of the percentages, and again, the total must be 100 percent.Then you go to Question 6. State the amount awarded, if any, for pain and suffering, including loss of enjoyment of life from the date of the accident up to the date of your verdict, which is today.A. Pain and suffering.B. Lost wages that I talked about.C. Medical travel expenses which I mentioned.D. Medical expenses which I gave you from off the lien.E. Physical therapy. As I read E, I forgot to tell you when I was reading you the list of numbers, there was proof on behalf by the Plaintiff that he owed $2,600 in physical therapy expenses yet.The next sentence says if you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.And then Question 7 is for the pain and suffering from the date of your verdict, which is today, to be incurred in the future, and there is a line for that amount to be recorded.If you went through and said none, provide that on the line.Number 8 asks you to spread the future pain and suffering over the number of years that I have just given you. And that concludes your work. Once you get that far, you'll have a verdict.Now, pay attention, please. Stop reading the verdict | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Regarding income taxes)25. (Transcript pages 1009 to 1013: Review of the verdict sheet)Members of the Jury, the controlling verdict sheet in the jury deliberation will be the jury sheet in the possession of the foreperson, and I'll get into that in a minute.The first question on the verdict sheet is was the Defendant, Claudia J. Sessions, negligent.Five of you have to agree. Yes or no. Or six of you can agree. If only four of you agree, you don't have a verdict. You must have at least five people agree. The next line tells you that.Then if there's five of you agree and one does not agree, then the name of the dissenting juror must be recorded on that line provided there.If you look at the instructions after that, it says if your answer is no, then you proceed no further and you report your verdict to the Court.If your answer is yes, then you go to Question 2.Question 2 is was the Defendant, Claudia J. Sessions', negligence a substantial factor in causing the accident. You answer that question yes or no.Again, the dissenter on the line provided.If your answer to Question 2 is no, then you go no further and report to the Court.Then if your answer is yes, you go to Question 3.This brings up whether or not the Plaintiff was negligent. Five of you have to agree there.If your answer to Question 3 is no, then you jump to Question 6.If your answer is yes, you go to Question 4.Was his negligence a substantial factor in causing the accident.If you answered that question no, you then go to Question 6.If you answer it yes, then you must go to Question 5.That is what I charged you about on comparative negligence and apportionment. That question asks what was the percentage of fault of the Defendant. What was the percentage of fault of the Plaintiff. There's a line provided for the recording of the percentages, and again, the total must be 100 percent.Then you go to Question 6. State the amount awarded, if any, for pain and suffering, including loss of enjoyment of life from the date of the accident up to the date of your verdict, which is today.A. Pain and suffering.B. Lost wages that I talked about.C. Medical travel expenses which I mentioned.D. Medical expenses which I gave you from off the lien.E. Physical therapy. As I read E, I forgot to tell you when I was reading you the list of numbers, there was proof on behalf by the Plaintiff that he owed $2,600 in physical therapy expenses yet.The next sentence says if you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.And then Question 7 is for the pain and suffering from the date of your verdict, which is today, to be incurred in the future, and there is a line for that amount to be recorded.If you went through and said none, provide that on the line.Number 8 asks you to spread the future pain and suffering over the number of years that I have just given you. And that concludes your work. Once you get that far, you'll have a verdict.Now, pay attention, please. Stop reading the verdict |
| sheet.26. . | sheet.26. PJI 1:27. |
| Exclude | Exclude |
| Sympathy27. . | Sympathy27. PJI 1:28. |
| Conclusion (modified—transcript pages 1014 to 1015—The Court substitutes “conclusion” for “decision”; “acquiesce in the conclusion” for “consent to the decision”)28. (Transcript page 1015—Further regarding the verdict sheet:)Now, momentarily, if you will go back to the verdict sheet and look at the first page again, I forgot to tell you if five of you answer Question Number 1, which is fine, when you get to Question 2, as I charged you before, the same five jurors do not have to agree on Question Number 2. The rule is that any five of you that agree on any one question with the answer to the question, then you have a verdict on that question. Is that clear?C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 24913553Trial Pleading (Answer), 2001 WL 34902020Jury Instruction (Jury Charge), 2002 WL 33005728Expert Trial Transcript, 2002 WL 33004091Verdict, Agreement and Settlement, 2003 WL 24306198Trial Order (Judgment on Separate Verdict of Jury), 2003 WL 25333171Trial Order, 2002 WL 33004091Trial Order, 2002 WL 34075677Appellate Decision, Muff v. Lallave Transp., Inc., 3 A.D.3d 693, 771 N.Y.S.2d 235 (3d Dep't 2004)2.Sample Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key | Conclusion (modified—transcript pages 1014 to 1015—The Court substitutes “conclusion” for “decision”; “acquiesce in the conclusion” for “consent to the decision”)28. (Transcript page 1015—Further regarding the verdict sheet:)Now, momentarily, if you will go back to the verdict sheet and look at the first page again, I forgot to tell you if five of you answer Question Number 1, which is fine, when you get to Question 2, as I charged you before, the same five jurors do not have to agree on Question Number 2. The rule is that any five of you that agree on any one question with the answer to the question, then you have a verdict on that question. Is that clear?C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 24913553Trial Pleading (Answer), 2001 WL 34902020Jury Instruction (Jury Charge), 2002 WL 33005728Expert Trial Transcript, 2002 WL 33004091Verdict, Agreement and Settlement, 2003 WL 24306198Trial Order (Judgment on Separate Verdict of Jury), 2003 WL 25333171Trial Order, 2002 WL 33004091Trial Order, 2002 WL 34075677Appellate Decision, Muff v. Lallave Transp., Inc., 3 A.D.3d 693, 771 N.Y.S.2d 235 (3d Dep't 2004)2.Sample Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:3 Motor | 4:48, 7:209, 7:209A§ 4:3 Motor |
| vehicle negligence: Collision; merging traffic/Personal injury: facial scarring, jaw injuries, knee injury/One motorcyclist plaintiff, one individual and one corporate defendantA. BackgroundType of Case: Motor Vehicle Negligence (comparable: defendant 83% responsible)Type of Injury: facial scarring, mandible and maxilla fractures and a fracture of the right medial femoral condyleCase Name: Steven Evers, Plaintiff, v. Richard Carrol and Wallace Oil Inc., Defendants.Court: Supreme Court of New York, Orange CountyJudge: Robert WilliamsDocket Number: 3304/98Verdict Date: August, 2002Outcome: Total verdict of $250,000; plaintiff comparatively negligent by 83%, award reduced to $43,500Brief Summary of Facts: A male suffered facial scarring, mandible and maxilla fractures and a fracture of the right medial femoral condyle when his vehicle was struck head-on by the codefendant's vehicle, operated by the male defendant, near an intersection. The plaintiff contended that the defendant operated the vehicle in a negligent manner, failed to stay right of the double center line, failed to take evasive action to avoid the collision and failed to keep a proper lookout. The defendants denied liability, disputed the extent of the plaintiff's injuries and contended that the accident was unavoidable. The plaintiff was found to be 83 percent comparatively negligent and his award was reduced to $42,500.B. Jury Instructions Given by the | vehicle negligence: Collision; merging traffic/Personal injury: facial scarring, jaw injuries, knee injury/One motorcyclist plaintiff, one individual and one corporate defendantA. BackgroundType of Case: Motor Vehicle Negligence (comparable: defendant 83% responsible)Type of Injury: facial scarring, mandible and maxilla fractures and a fracture of the right medial femoral condyleCase Name: Steven Evers, Plaintiff, v. Richard Carrol and Wallace Oil Inc., Defendants.Court: Supreme Court of New York, Orange CountyJudge: Robert WilliamsDocket Number: 3304/98Verdict Date: August, 2002Outcome: Total verdict of $250,000; plaintiff comparatively negligent by 83%, award reduced to $43,500Brief Summary of Facts: A male suffered facial scarring, mandible and maxilla fractures and a fracture of the right medial femoral condyle when his vehicle was struck head-on by the codefendant's vehicle, operated by the male defendant, near an intersection. The plaintiff contended that the defendant operated the vehicle in a negligent manner, failed to stay right of the double center line, failed to take evasive action to avoid the collision and failed to keep a proper lookout. The defendants denied liability, disputed the extent of the plaintiff's injuries and contended that the accident was unavoidable. The plaintiff was found to be 83 percent comparatively negligent and his award was reduced to $42,500.B. Jury Instructions Given by the |
| Court1. . | Court1. PJI 2:235. |
| Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment (modified—transcript page 1583:)I instruct you that in driving the van on September 16th, 1997 the acts of the defendant Carroll are the acts of the defendant Wallace. Since it is acknowledged that the defendant Carroll was driving a Wallace van in the course of his employment, Wallace is therefore responsible for the acts of its employee | Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment (modified—transcript page 1583:)I instruct you that in driving the van on September 16th, 1997 the acts of the defendant Carroll are the acts of the defendant Wallace. Since it is acknowledged that the defendant Carroll was driving a Wallace van in the course of his employment, Wallace is therefore responsible for the acts of its employee |
| Carroll.2. . | Carroll.2. PJI 1:28. |
| Conclusion (modified—transcript page 1583:)Next, jurors, I am going to ask you, when you the six jurors first go into your jury room after I complete this charge, I'm going to ask you that you designate by whatever means you wish to, one of your members as the spokesperson of the | Conclusion (modified—transcript page 1583:)Next, jurors, I am going to ask you, when you the six jurors first go into your jury room after I complete this charge, I'm going to ask you that you designate by whatever means you wish to, one of your members as the spokesperson of the |
| jury,3. . | jury,3. PJI 1:104. |
| General Instruction—Supplemental Charge—Questions by Jurors (modified—transcript page 1583:)Amongst other things, if you have any questions to ask of the court, that person will present the question to me in your presence. And also that person will make such entries on the jury verdict sheet as you the jurors have determined after arriving at your conclusion or conclusions in so far as this civil action is | General Instruction—Supplemental Charge—Questions by Jurors (modified—transcript page 1583:)Amongst other things, if you have any questions to ask of the court, that person will present the question to me in your presence. And also that person will make such entries on the jury verdict sheet as you the jurors have determined after arriving at your conclusion or conclusions in so far as this civil action is |
| concerned.3. . | concerned.3. PJI 1:24. |
| Return to Courtroom (modified—transcript page 1584:)Jurors, based on my experience I ask you please do not write any notes to me. Whatever question you may have, all you will do is send your spokesperson and I will remain in the area of the jury room, because it appears we will not have a court officer. I will be there. So that that person can simply say, Judge, may I and the jurors come back into the courtroom because we have a question we wish to ask you.Jurors, I will also want you to understand that I will be saying this during the charge that if at any time you need a read back of any testimony, whether it be from a person testifying under oath before you or excerpts from an examination before trial, or from any court hearing or from a video, that can be | Return to Courtroom (modified—transcript page 1584:)Jurors, based on my experience I ask you please do not write any notes to me. Whatever question you may have, all you will do is send your spokesperson and I will remain in the area of the jury room, because it appears we will not have a court officer. I will be there. So that that person can simply say, Judge, may I and the jurors come back into the courtroom because we have a question we wish to ask you.Jurors, I will also want you to understand that I will be saying this during the charge that if at any time you need a read back of any testimony, whether it be from a person testifying under oath before you or excerpts from an examination before trial, or from any court hearing or from a video, that can be |
| accomplished.4. . | accomplished.4. PJI 1:103. |
| General Instruction—Supplemental Charge—Note-Taking by Jurors (modified—transcript 1585)I'm going to make a very brief remarks about the notes taken by the two jurors. Juror number one and juror number three. The jurors number one and number three may in the jury deliberation room look at and seek assistance for themselves from the notes that they have taken. I instruct that under no circumstances shall the notes be handed to any other juror.Author's Comment: Expressly prohibiting a juror from sharing his or her notes with other jurors is not part of the pattern charge or 22 NYCRR § 220.10 (“Note-taking by Jurors”), although both of these make clear that such notes are only for the note-taker's personal use.Now, jurors, let me make this suggestion. If something arises in the course of your deliberations, by virtue of those notes, and you the jurors that did not take notes have a question as to whether or not the testimony or the statements, please understand you are entitled, all six jurors, to come in and have that particular testimony or whatever it is read to you. It is unnecessary to advise you, you already know it. You know that the only official record in this case is the reporter's | General Instruction—Supplemental Charge—Note-Taking by Jurors (modified—transcript 1585)I'm going to make a very brief remarks about the notes taken by the two jurors. Juror number one and juror number three. The jurors number one and number three may in the jury deliberation room look at and seek assistance for themselves from the notes that they have taken. I instruct that under no circumstances shall the notes be handed to any other juror.Author's Comment: Expressly prohibiting a juror from sharing his or her notes with other jurors is not part of the pattern charge or 22 NYCRR § 220.10 (“Note-taking by Jurors”), although both of these make clear that such notes are only for the note-taker's personal use.Now, jurors, let me make this suggestion. If something arises in the course of your deliberations, by virtue of those notes, and you the jurors that did not take notes have a question as to whether or not the testimony or the statements, please understand you are entitled, all six jurors, to come in and have that particular testimony or whatever it is read to you. It is unnecessary to advise you, you already know it. You know that the only official record in this case is the reporter's |
| record.5. . | record.5. PJI 1:25A. |
| Juror's Use of Professional Expertise (Transcript page 1586: Court leaves out “You may not consider or speculate on matters not in evidence or matters outside the | Juror's Use of Professional Expertise (Transcript page 1586: Court leaves out “You may not consider or speculate on matters not in evidence or matters outside the |
| case.”)6. . | case.”)6. PJI 1:20. |
| Introduction7. (Transcript pages 1586 to 158: Court discusses the reason for lawsuits.)As I said at an earlier point, a lawsuit is a civilized method of determining differences between people. It is basically to the administration of our system of justice that a determination on both the law and the facts be made fairly and honestly. You as the jurors and I as the judge, do have a heavy responsibility to assure that a just result is reached in the determination of the differences that exist between the parties, plaintiff party and the party | Introduction7. (Transcript pages 1586 to 158: Court discusses the reason for lawsuits.)As I said at an earlier point, a lawsuit is a civilized method of determining differences between people. It is basically to the administration of our system of justice that a determination on both the law and the facts be made fairly and honestly. You as the jurors and I as the judge, do have a heavy responsibility to assure that a just result is reached in the determination of the differences that exist between the parties, plaintiff party and the party |
| defendant.8. . | defendant.8. PJI 1:6. |
| Function of Court and Jury (Transcript page 1587: Court first discusses fundamental duty of jurors)As jurors it is your fundamental duty to determine from all of the evidence that the testimony and the exhibits as to what you found the facts to be in this civil action. You are the sole exclusive judges of all factual matters. In that field you are supreme.I represent now to counsel and their clients that I do not intend in this charge to you the jurors to in any way invade you in serving your responsibility.(Transcript page 1587 to 1588: Court recites | Function of Court and Jury (Transcript page 1587: Court first discusses fundamental duty of jurors)As jurors it is your fundamental duty to determine from all of the evidence that the testimony and the exhibits as to what you found the facts to be in this civil action. You are the sole exclusive judges of all factual matters. In that field you are supreme.I represent now to counsel and their clients that I do not intend in this charge to you the jurors to in any way invade you in serving your responsibility.(Transcript page 1587 to 1588: Court recites |
| , | PJI 1:6, |
| and adds:)You have heard counsel comment on credibility issues. There was no impropriety in either counsel's observations. But it's not the judge, it's not the lawyers, it's not the parties. It's the jurors that make all credibility determinations and all factual determinations. . .. In the course of the trial it has been necessary for me to make rulings. On at least two occasions I instructed counsel that they would not do certain things. Jurors, do not draw any inference for or against a party by virtue of anything that I said to counsel. Any views, if any, if you feel I have any views, and I did not have any views as to what our verdict should be, you simply disregard any statement that I made if it will affect your ability to return a judgment. A verdict based on what is before you, what you actually find under these legal | and adds:)You have heard counsel comment on credibility issues. There was no impropriety in either counsel's observations. But it's not the judge, it's not the lawyers, it's not the parties. It's the jurors that make all credibility determinations and all factual determinations. . .. In the course of the trial it has been necessary for me to make rulings. On at least two occasions I instructed counsel that they would not do certain things. Jurors, do not draw any inference for or against a party by virtue of anything that I said to counsel. Any views, if any, if you feel I have any views, and I did not have any views as to what our verdict should be, you simply disregard any statement that I made if it will affect your ability to return a judgment. A verdict based on what is before you, what you actually find under these legal |
| instructions.9. . | instructions.9. PJI 1:7. |
| Consider Only Competent Evidence (modified—transcript pages 1589 to 1590)Now, jurors, in this regard at this juncture, I will indicate that I determined which exhibits in evidence are going into the jury room. I will ask counsel as soon as you leave the courtroom at the end of this charge to give me all the exhibits they believe should go into evidence, and I will determine if they are the ones and if there are others.Now, jurors, I will tell you specifically at this time as to Exhibit 5, if you recall that was received in evidence subject to an instruction. That it was received in evidence to show topography of the highway. It was not received in evidence for any other purpose.Now, jurors, the law does not require you to accept all of the evidence that I have admitted, even though it be competent evidence. In determining what evidence you will accept you make your own evaluation of the testimony given by any or all of the witnesses. You determine the degree of weight that you choose to give to that person's | Consider Only Competent Evidence (modified—transcript pages 1589 to 1590)Now, jurors, in this regard at this juncture, I will indicate that I determined which exhibits in evidence are going into the jury room. I will ask counsel as soon as you leave the courtroom at the end of this charge to give me all the exhibits they believe should go into evidence, and I will determine if they are the ones and if there are others.Now, jurors, I will tell you specifically at this time as to Exhibit 5, if you recall that was received in evidence subject to an instruction. That it was received in evidence to show topography of the highway. It was not received in evidence for any other purpose.Now, jurors, the law does not require you to accept all of the evidence that I have admitted, even though it be competent evidence. In determining what evidence you will accept you make your own evaluation of the testimony given by any or all of the witnesses. You determine the degree of weight that you choose to give to that person's |
| testimony.10. . | testimony.10. PJI 1:8. |
| Weighing Testimony (After instruction about “reliability or unreliability of statements”, court adds:)I suggest, jurors, that the same test that you used in making those judgments may be applied in your deliberation. So long as it is based on the evidence that is before you. That is the testimony that you believe and the | Weighing Testimony (After instruction about “reliability or unreliability of statements”, court adds:)I suggest, jurors, that the same test that you used in making those judgments may be applied in your deliberation. So long as it is based on the evidence that is before you. That is the testimony that you believe and the |
| exhibits.11. . | exhibits.11. PJI 1:91. |
| General Instruction—Interested Witness—Generally (Transcript pages 1592 to 1593: Court identifies who is an interested witness before giving charge:)Now, jurors, I give a specific instruction and as a matter of law, the plaintiff who testified and the defendant Carroll who testified are interested | General Instruction—Interested Witness—Generally (Transcript pages 1592 to 1593: Court identifies who is an interested witness before giving charge:)Now, jurors, I give a specific instruction and as a matter of law, the plaintiff who testified and the defendant Carroll who testified are interested |
| witnesses.12. . | witnesses.12. PJI 1:22. |
| Falsus in | Falsus in |
| Uno13. . | Uno13. PJI 1:28. |
| Conclusion (Transcript page 1594: In addition to portion at instruction 2, Court includes more from | Conclusion (Transcript page 1594: In addition to portion at instruction 2, Court includes more from |
| :)Well, | PJI 1:28:)Well, |
| jurors, before I go into specific instructions, I want you to be aware that your responsibility in this case will be after appropriate examination, discussion and I hope in that jury you recognize that you individually as a sworn juror have a forum to the other jurors what your thoughts are, but equally. That you listen to your fellow sworn jurors so that they may discuss those matters that are your responsibility in so far as determination of controverted factual issues are | jurors, before I go into specific instructions, I want you to be aware that your responsibility in this case will be after appropriate examination, discussion and I hope in that jury you recognize that you individually as a sworn juror have a forum to the other jurors what your thoughts are, but equally. That you listen to your fellow sworn jurors so that they may discuss those matters that are your responsibility in so far as determination of controverted factual issues are |
| concerned.13. . | concerned.13. PJI 1:97. |
| General Instruction—Special Verdicts (modified—transcript page 1595: Court presents discussion of verdict sheet:)Jurors, now I want you to know that this jury verdict sheet consisting of two pages has seven questions. I'm not going to at this juncture read the questions to you. I'm simply going to observe, read the questions in the first four. The question calls for a yes or no answer. There is instructions underneath if your answer is so and so through so and so.Now, jurors, in addition to that you have three separate questions on the other page. And I will be addressing this in a few moments. But I want you to know to return a verdict accordingly you will—to the court—you will have to answer such part or all of these questions as you determine.Now, please understand, jurors, when the judge charges a jury the judge has to give instructions on all possible conclusions by the jury.Author's Comment: The judge's apology for giving instructions “on all possible outcomes” risks creating the impression that the judge has reached a conclusion that not all outcomes are | General Instruction—Special Verdicts (modified—transcript page 1595: Court presents discussion of verdict sheet:)Jurors, now I want you to know that this jury verdict sheet consisting of two pages has seven questions. I'm not going to at this juncture read the questions to you. I'm simply going to observe, read the questions in the first four. The question calls for a yes or no answer. There is instructions underneath if your answer is so and so through so and so.Now, jurors, in addition to that you have three separate questions on the other page. And I will be addressing this in a few moments. But I want you to know to return a verdict accordingly you will—to the court—you will have to answer such part or all of these questions as you determine.Now, please understand, jurors, when the judge charges a jury the judge has to give instructions on all possible conclusions by the jury.Author's Comment: The judge's apology for giving instructions “on all possible outcomes” risks creating the impression that the judge has reached a conclusion that not all outcomes are |
| reasonable.13. . | reasonable.13. PJI 1:23. |
| Burden of proof (Transcript pages 1595 to 1596: The court interjects:)When the plaintiff contends that the defendant was negligent and that that negligence was a substantial factor in bringing about the accident and the injury claimed, the plaintiff has the burden of proof. However, I want you to know that when the defendant claims that the plaintiff was negligent that burden of proof is the defendant's burden. Now party carrying the burden has this | Burden of proof (Transcript pages 1595 to 1596: The court interjects:)When the plaintiff contends that the defendant was negligent and that that negligence was a substantial factor in bringing about the accident and the injury claimed, the plaintiff has the burden of proof. However, I want you to know that when the defendant claims that the plaintiff was negligent that burden of proof is the defendant's burden. Now party carrying the burden has this |
| duty.14. . | duty.14. PJI 1:103. |
| General Instruction—Supplemental Charge—Note-Taking by Jurors (Transcript pages 1597: The court talks about reading back the transcript:)Now, jurors, I want to, before I go into the specific charge and that I should have done this earlier, if in the course of your deliberation you at any time feel—that is your body, not just one individual, but the six of you, or the majority of you that you should have something asked of the judge or read back, do it at that point in time so that you may go forward after having that | General Instruction—Supplemental Charge—Note-Taking by Jurors (Transcript pages 1597: The court talks about reading back the transcript:)Now, jurors, I want to, before I go into the specific charge and that I should have done this earlier, if in the course of your deliberation you at any time feel—that is your body, not just one individual, but the six of you, or the majority of you that you should have something asked of the judge or read back, do it at that point in time so that you may go forward after having that |
| opportunity.15. . | opportunity.15. PJI 1:26. |
| Five-Sixths Verdict (Transcript pages 1597 to 1598: Court elaborates on five-sixths verdict:)Now, jurors, five, does not have to be the same five as to every question. But as to every question there must be five that answer one way or the other.Example, do not come back in and say, Judge, we have a verdict to report if four of you say one thing and two of you say the other. Because all I will say is, jurors, I cannot accept this verdict. Five on any one of the questions that you find you should | Five-Sixths Verdict (Transcript pages 1597 to 1598: Court elaborates on five-sixths verdict:)Now, jurors, five, does not have to be the same five as to every question. But as to every question there must be five that answer one way or the other.Example, do not come back in and say, Judge, we have a verdict to report if four of you say one thing and two of you say the other. Because all I will say is, jurors, I cannot accept this verdict. Five on any one of the questions that you find you should |
| answer.16. . | answer.16. PJI 1:27. |
| Exclude Sympathy17. (Transcript pages 1599 to 1601: The court reviews all the | Exclude Sympathy17. (Transcript pages 1599 to 1601: The court reviews all the |
| witnesses)18. . | witnesses)18. PJI 1:90. |
| General Instruction—Expert Witness(Transcript pages 1601 to 1602: Court adds, after “disclosed by other testimony,” the words “which you find believable.”)19. (Transcript pages 1604 to 1605: Court reviews what the jury has seen and heard, before going to a definition of negligence.)Now, jurors, remember I said at the very beginning I'm not going to in these instructions say anything to you that can be construed as planting a seed or suggesting what you should find.Jurors, before I go into this phase of the charge it seems to me that in the course of your deliberations to answer the questions on the jury verdict sheet, you will have to have a discussion based on your credibility judgments.Jurors, no mystery. You and I have been together for this number of days by virtue of an accident that occurred on River Road in the Town of Montgomery on September 16th, 1997. You have heard testimony from lay sources, you have heard from expert sources. You have heard testimony from sworn testimony here. Video testimony, examination before trial testimony, 58H hearing testimony.You've had 104 exhibits marked for identification. And I don't say 104 are in evidence. But it's voluminous exhibits. Folks, not to plant a seed, it seems to me that amongst other things you're going to have to make a determination as to where the accident happened. Where were the vehicles at the time of the impact. What caused the vehicles to be in contact with each other. And such other matters as you, the jurors, determine require discussion, analysis and finding, so as to answer these questions on the jury verdict sheet.Jurors, the plaintiff, amongst other things, contends that the defendant was negligent in the operation of his van. And that negligence was a substantial factor in causing the accident and the injuries claimed.The defendant denies, the defendant further says, you, plaintiff were responsible. You were negligent and your negligence was a substantial | General Instruction—Expert Witness(Transcript pages 1601 to 1602: Court adds, after “disclosed by other testimony,” the words “which you find believable.”)19. (Transcript pages 1604 to 1605: Court reviews what the jury has seen and heard, before going to a definition of negligence.)Now, jurors, remember I said at the very beginning I'm not going to in these instructions say anything to you that can be construed as planting a seed or suggesting what you should find.Jurors, before I go into this phase of the charge it seems to me that in the course of your deliberations to answer the questions on the jury verdict sheet, you will have to have a discussion based on your credibility judgments.Jurors, no mystery. You and I have been together for this number of days by virtue of an accident that occurred on River Road in the Town of Montgomery on September 16th, 1997. You have heard testimony from lay sources, you have heard from expert sources. You have heard testimony from sworn testimony here. Video testimony, examination before trial testimony, 58H hearing testimony.You've had 104 exhibits marked for identification. And I don't say 104 are in evidence. But it's voluminous exhibits. Folks, not to plant a seed, it seems to me that amongst other things you're going to have to make a determination as to where the accident happened. Where were the vehicles at the time of the impact. What caused the vehicles to be in contact with each other. And such other matters as you, the jurors, determine require discussion, analysis and finding, so as to answer these questions on the jury verdict sheet.Jurors, the plaintiff, amongst other things, contends that the defendant was negligent in the operation of his van. And that negligence was a substantial factor in causing the accident and the injuries claimed.The defendant denies, the defendant further says, you, plaintiff were responsible. You were negligent and your negligence was a substantial |
| factor.20. . | factor.20. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined—Generally (Transcript page 1605: Court prefaces definition with:)Jurors, the definition of negligence as applies to this civil action is as | Common Law Standard of Care—Negligence Defined—Generally (Transcript page 1605: Court prefaces definition with:)Jurors, the definition of negligence as applies to this civil action is as |
| follows.21. . | follows.21. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General22. . | General22. PJI 2:71. |
| Proximate Cause—Concurrent | Proximate Cause—Concurrent |
| Causes23. . | Causes23. PJI 2:36. |
| Comparative Fault (Transcript pages 1607 to 1608: The court interjects into this instruction, after “you must then apportion the fault between the plaintiff and the defendant”:)Now, jurors, let me place this in perspective. Question Number 1, you are asked, was the defendant Richard Carroll, Wallace Oil negligent. Answer yes or no. Depending on your answer you will read the instruction.Question Number 2, was the negligence of the defendant Carroll and Wallace a substantial factor in producing the injury? Answer yes or no. Depending on your answer,Question Number 3, was plaintiff negligent? Answer yes or no. Depending on the answer,Question Number 4, was the negligence of the plaintiff Evers a substantial factor in producing the injury. Answer yes or | Comparative Fault (Transcript pages 1607 to 1608: The court interjects into this instruction, after “you must then apportion the fault between the plaintiff and the defendant”:)Now, jurors, let me place this in perspective. Question Number 1, you are asked, was the defendant Richard Carroll, Wallace Oil negligent. Answer yes or no. Depending on your answer you will read the instruction.Question Number 2, was the negligence of the defendant Carroll and Wallace a substantial factor in producing the injury? Answer yes or no. Depending on your answer,Question Number 3, was plaintiff negligent? Answer yes or no. Depending on the answer,Question Number 4, was the negligence of the plaintiff Evers a substantial factor in producing the injury. Answer yes or |
| no.24. . | no.24. PJI 2:36.1. |
| Comparative Negligence—Bifurcated Trial (Transcript pages 1609: The court adds, after instruction:)Jurors, I direct your attention to Question Number 5, which reads, what was the percentage of responsibility chargeable to the following: Carroll and Wallace, what percentage, plaintiff Evers, what percentage. With the instruction, the total must equal 100 | Comparative Negligence—Bifurcated Trial (Transcript pages 1609: The court adds, after instruction:)Jurors, I direct your attention to Question Number 5, which reads, what was the percentage of responsibility chargeable to the following: Carroll and Wallace, what percentage, plaintiff Evers, what percentage. With the instruction, the total must equal 100 |
| percent.25. . | percent.25. PJI 2:36.2. |
| Comparative Negligence—Bifurcated Trial [Supplemental Instruction] (Transcript pages 1609: Preceding this instruction, the court states, as preface:)[I]f you find that the defendant was negligent or not, or if you find the defendant negligent and if you find the plaintiff negligent and that you allocate a percentage, | Comparative Negligence—Bifurcated Trial [Supplemental Instruction] (Transcript pages 1609: Preceding this instruction, the court states, as preface:)[I]f you find that the defendant was negligent or not, or if you find the defendant negligent and if you find the plaintiff negligent and that you allocate a percentage, |
| then26. . | then26. PJI 2:77. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, In | Motor Vehicle Accidents—Duty Toward Other Motorists, In |
| General27. . | General27. PJI 2:77.1. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental | Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental |
| Instruction]28. . | Instruction]28. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript pages 1611 to 1612: The court interjects, before “you cannot disregard a violation. . .”)Now jurors, parenthetically I want you to understand the facts that I charge these two sections of the Vehicle and Traffic Law, which I'm going to do in a minute, then another provision of Vehicle and Traffic Law as to one operator. I want you to understand that you make the determination as to whether there was a violation of the Vehicle and Traffic Law section. If you find that there wasn't, the facts that I charge the instructions under that your determination will be the determinate as to whether or not the finding of negligence is. If you find that there was not a violation then you don't make such a determination.Author's Comment: The judge's statement clarifying that giving a charge on a statutory violation does not mean that the statute was actually violated provides a useful counterweight to the dispositive wording of the pattern charge (“You cannot disregard a violation of the | Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript pages 1611 to 1612: The court interjects, before “you cannot disregard a violation. . .”)Now jurors, parenthetically I want you to understand the facts that I charge these two sections of the Vehicle and Traffic Law, which I'm going to do in a minute, then another provision of Vehicle and Traffic Law as to one operator. I want you to understand that you make the determination as to whether there was a violation of the Vehicle and Traffic Law section. If you find that there wasn't, the facts that I charge the instructions under that your determination will be the determinate as to whether or not the finding of negligence is. If you find that there was not a violation then you don't make such a determination.Author's Comment: The judge's statement clarifying that giving a charge on a statutory violation does not mean that the statute was actually violated provides a useful counterweight to the dispositive wording of the pattern charge (“You cannot disregard a violation of the |
| statute. . ..”).29. . | statute. . ..”).29. PJI 2:26A. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation—Driving to Left of Official Highway Markings (Transcript page 1613: Court states the opposite of the correct law:)Jurors, if you find that either driver did not drive to the left side of the yellow line, you will find that that driver was negligent. If you find that either did drive to the left, you will then find that that driver was not | Statutory Standard of Care—Vehicle and Traffic Law Violation—Driving to Left of Official Highway Markings (Transcript page 1613: Court states the opposite of the correct law:)Jurors, if you find that either driver did not drive to the left side of the yellow line, you will find that that driver was negligent. If you find that either did drive to the left, you will then find that that driver was not |
| negligent.30. . | negligent.30. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript pages 1613 to 1614: Court reads section 1128 of VTL, regarding staying in one's lane)31. (Transcript page 1614: The court here adds:)Jurors, I repeat a violation of Vehicle and Traffic Law constitutes negligence. However, if you find that there was not a violation and the charge has no affect because it is only if there is a violation that you can then reach the conclusion it is because of the violation that you find the operator | Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript pages 1613 to 1614: Court reads section 1128 of VTL, regarding staying in one's lane)31. (Transcript page 1614: The court here adds:)Jurors, I repeat a violation of Vehicle and Traffic Law constitutes negligence. However, if you find that there was not a violation and the charge has no affect because it is only if there is a violation that you can then reach the conclusion it is because of the violation that you find the operator |
| negligent.32. . | negligent.32. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript page 1614 to 1615: Regarding the plaintiff only, the court recites the VTL section regarding excessive speed, without giving the statute's number.)Now I have one more section that I'm going to charge. And this is charged as to the plaintiff Evers. I charge as follows. No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards that exist.I instruct, jurors, that you will make a determination of that section of the Vehicle and Traffic Law is charged as to plaintiff | Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript page 1614 to 1615: Regarding the plaintiff only, the court recites the VTL section regarding excessive speed, without giving the statute's number.)Now I have one more section that I'm going to charge. And this is charged as to the plaintiff Evers. I charge as follows. No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards that exist.I instruct, jurors, that you will make a determination of that section of the Vehicle and Traffic Law is charged as to plaintiff |
| Evers.33. . | Evers.33. PJI 2:277. |
| Damages—General. (Transcript page 1615: The court substitutes “then you will not answer the question as to damages” for “you need not consider | Damages—General. (Transcript page 1615: The court substitutes “then you will not answer the question as to damages” for “you need not consider |
| damages.”)34. . | damages.”)34. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering.35. . | Suffering.35. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental |
| Instruction]36. . | Instruction]36. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 1617: Before discussion of life expectancy tables, court adds:)You will note and read Question Number 6, state the amount of the award if any for the following items. Conscious pain and suffering from the date of the incident. That's the accident to the date of trial. Then the next question is conscious pain and suffering in the future from today's date forward.Author's Comment: Although “past” and “future” damages may seem to be self-evident concepts to lawyers and judges, it is helpful that the judge expressly sets the dividing line at the date of | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 1617: Before discussion of life expectancy tables, court adds:)You will note and read Question Number 6, state the amount of the award if any for the following items. Conscious pain and suffering from the date of the incident. That's the accident to the date of trial. Then the next question is conscious pain and suffering in the future from today's date forward.Author's Comment: Although “past” and “future” damages may seem to be self-evident concepts to lawyers and judges, it is helpful that the judge expressly sets the dividing line at the date of |
| trial.37. . | trial.37. PJI 2:284. |
| Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences Thereof38. (Transcript page 1619: Court notes that, if a mistake was made in the instructions, an attorney may correct it:)Now, jurors, I may have left something out of this charge that I should have charged. The lawyer's going to call to my attention, which happens during the course of doing this. I want to observe that if I did as soon as I send you out of the room the lawyers are permitted to call that to my attention. If I feel there has been a significant failure to charge something that should be charged or if I made a misstatement I will bring you back in and I will correct it.Author's Comment: The judge's statement that there may have been mistakes in the charge seems unnecessary and subversive of the court's authority. Any error in the original instructions may be corrected using | Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences Thereof38. (Transcript page 1619: Court notes that, if a mistake was made in the instructions, an attorney may correct it:)Now, jurors, I may have left something out of this charge that I should have charged. The lawyer's going to call to my attention, which happens during the course of doing this. I want to observe that if I did as soon as I send you out of the room the lawyers are permitted to call that to my attention. If I feel there has been a significant failure to charge something that should be charged or if I made a misstatement I will bring you back in and I will correct it.Author's Comment: The judge's statement that there may have been mistakes in the charge seems unnecessary and subversive of the court's authority. Any error in the original instructions may be corrected using |
| PJI 1:101 |
| after the error is | after the error is |
| discovered.39. . | discovered.39. PJI 1:28. |
| Conclusion (Transcript pages 1619 to 1620: More from | Conclusion (Transcript pages 1619 to 1620: More from |
| , | PJI 1:28, |
| in addition to Instructions 2 and 13. Court leaves out the first few sentences, including information about the foreperson. Court precedes conclusion with:)Now, folks, at this point in time that I announce that I have concluded the instructions that I feel are appropriate in this case based on the presentation.Author's Comment: This language—personalizing the instructions rather than stating, as per | in addition to Instructions 2 and 13. Court leaves out the first few sentences, including information about the foreperson. Court precedes conclusion with:)Now, folks, at this point in time that I announce that I have concluded the instructions that I feel are appropriate in this case based on the presentation.Author's Comment: This language—personalizing the instructions rather than stating, as per |
| , | PJI 1:28, |
| “I have now outlined for you the rules of law that apply to this case. . .”—would appear to be unnecessary and somewhat at odds with the court's role as authoritative expositor of the law.(Remainder of instruction is paraphrased, and Court adds:)Take such time to examine the exhibits that are going to be presented and to discuss the testimony. Try if possible to reach an agreement on what your verdict is.(Court substitutes the word “conscious” for the word “conscientious,” as in “you should not surrender conscious convictions,” rather than, “you should not surrender conscientious convictions,” and, “conscious deliberation” rather than “conscientious deliberation.”)C. Case Documents Available on Westlaw1.Jury Instruction, 2002 WL 33277261Verdict and Settlement Summary, | “I have now outlined for you the rules of law that apply to this case. . .”—would appear to be unnecessary and somewhat at odds with the court's role as authoritative expositor of the law.(Remainder of instruction is paraphrased, and Court adds:)Take such time to examine the exhibits that are going to be presented and to discuss the testimony. Try if possible to reach an agreement on what your verdict is.(Court substitutes the word “conscious” for the word “conscientious,” as in “you should not surrender conscious convictions,” rather than, “you should not surrender conscientious convictions,” and, “conscious deliberation” rather than “conscientious deliberation.”)C. Case Documents Available on Westlaw1.Jury Instruction, 2002 WL 33277261Verdict and Settlement Summary, |
| 2.Sample | 2002 WL 325085272.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:4 Motor | 4:48, 7:209, 7:209A§ 4:4 Motor |
| vehicle negligence: bicycle colliding with taxicab/Personal injury: clavicle fracture/One plaintiff, one corporate defendant and othersA. BackgroundType of Case: Motor Vehicle Negligence; Collision of bicyclist with taxicabType of Injury: clavicle fractureCase Name: Cass Vanini, Plaintiff, v. Ramtol Service Corp., et al., DefendantsCourt: Supreme Court of New York, New York CountyJudge: Faviola A. SotoDocket Number: 404413/02Verdict Date: June 2002Outcome: Jury awarded $15,000, which judge increased to $60,000. Taxi driver/defendant was 80% responsible; plaintiff 20%; passenger not at fault.Brief Summary of Facts: Bicyclist brought action against operator of taxicab and passenger in taxi for personal injuries incurred during collision with door of taxi that had been opened to discharge passenger. On appeal, the trial court's order was modified by denying the plaintiff's motion to set aside the verdict and by reinstating the verdict awarding $15,000.B. Jury Instructions1. Instructions Given by the | vehicle negligence: bicycle colliding with taxicab/Personal injury: clavicle fracture/One plaintiff, one corporate defendant and othersA. BackgroundType of Case: Motor Vehicle Negligence; Collision of bicyclist with taxicabType of Injury: clavicle fractureCase Name: Cass Vanini, Plaintiff, v. Ramtol Service Corp., et al., DefendantsCourt: Supreme Court of New York, New York CountyJudge: Faviola A. SotoDocket Number: 404413/02Verdict Date: June 2002Outcome: Jury awarded $15,000, which judge increased to $60,000. Taxi driver/defendant was 80% responsible; plaintiff 20%; passenger not at fault.Brief Summary of Facts: Bicyclist brought action against operator of taxicab and passenger in taxi for personal injuries incurred during collision with door of taxi that had been opened to discharge passenger. On appeal, the trial court's order was modified by denying the plaintiff's motion to set aside the verdict and by reinstating the verdict awarding $15,000.B. Jury Instructions1. Instructions Given by the |
| Court1. . | Court1. PJI 1:20. |
| Introduction (Transcript page 346: court adds “inferences” to instruction:)you now know what inferences and conclusions they wish for you to | Introduction (Transcript page 346: court adds “inferences” to instruction:)you now know what inferences and conclusions they wish for you to |
| draw.2. . | draw.2. PJI 1:21. |
| Review Principles Stated (Transcript page 346: Court omits: “You should not consider or accept any advice about the law from anyone else but me” and adds:)Remember, I am the Judge of the law, I decide all the legal issues. You are the judges of the facts.(Transcript page 346: Court also adds:)All of my rulings were based on the laws of the State of New York and have nothing to do with the facts. The facts are your province.(Transcript page 347: Court adds, regarding the weight given to evidence:)Things that you can take into consideration, of course, as I mentioned earlier, this is not an exhaustive list, is any bias or prejudice that you find the witness has. The witness has any interest in the outcome of the case. If you look at the witness's age, their manner of testimony, you listen to their story and you determine whether it sounds probable or improbable in light of all the evidence that was presented to | Review Principles Stated (Transcript page 346: Court omits: “You should not consider or accept any advice about the law from anyone else but me” and adds:)Remember, I am the Judge of the law, I decide all the legal issues. You are the judges of the facts.(Transcript page 346: Court also adds:)All of my rulings were based on the laws of the State of New York and have nothing to do with the facts. The facts are your province.(Transcript page 347: Court adds, regarding the weight given to evidence:)Things that you can take into consideration, of course, as I mentioned earlier, this is not an exhaustive list, is any bias or prejudice that you find the witness has. The witness has any interest in the outcome of the case. If you look at the witness's age, their manner of testimony, you listen to their story and you determine whether it sounds probable or improbable in light of all the evidence that was presented to |
| you.3. . | you.3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of Proof (Transcript pages 348 to 349: Court adds after “the burden of proof in this case rests upon the plaintiff”:)except for one issue that I will mention later in my charge.(Transcript page 349: The court replaces the word “weighs” with “blends”:)if it blends so evenly that you are unable to say that there is a preponderance on either | Burden of Proof (Transcript pages 348 to 349: Court adds after “the burden of proof in this case rests upon the plaintiff”:)except for one issue that I will mention later in my charge.(Transcript page 349: The court replaces the word “weighs” with “blends”:)if it blends so evenly that you are unable to say that there is a preponderance on either |
| side5. .Return | side5. PJI 1:24.Return |
| to Courtroom (Transcript page 349: Court prefaces with:)This is a relatively short trial, but in the unlikely event that your recollection should fail about some of the testimony. . .(Court adds:)Just give us a little time to find it in the record and get it ready. Also, if you wish to see any of the exhibits, you send me a note and I'll send you whatever you want that is in evidence. And if you have any questions about my charge, I will be very happy to explain it to you | to Courtroom (Transcript page 349: Court prefaces with:)This is a relatively short trial, but in the unlikely event that your recollection should fail about some of the testimony. . .(Court adds:)Just give us a little time to find it in the record and get it ready. Also, if you wish to see any of the exhibits, you send me a note and I'll send you whatever you want that is in evidence. And if you have any questions about my charge, I will be very happy to explain it to you |
| further.6. . | further.6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:27. |
| Exclude Sympathy (Transcript page 350: Court omits “find the facts from what you consider to be the believable | Exclude Sympathy (Transcript page 350: Court omits “find the facts from what you consider to be the believable |
| evidence.”)8. . Impartiality9. . | evidence.”)8. PJI 1:36. Impartiality9. PJI 1:75. |
| General Instruction—Evidence—Failure to Produce Witness—In General (Transcript page 351: Court provided an example:)For example, in this case, the defendant Mr. George G. Ramboa, the driver of the cab, was not called to testify regarding the issue of liability as to what happened in this case. The defendant has offered no explanation for not calling this witness, this party.Author's Comment: It is fair to speculate that | General Instruction—Evidence—Failure to Produce Witness—In General (Transcript page 351: Court provided an example:)For example, in this case, the defendant Mr. George G. Ramboa, the driver of the cab, was not called to testify regarding the issue of liability as to what happened in this case. The defendant has offered no explanation for not calling this witness, this party.Author's Comment: It is fair to speculate that |
| , | PJI 1:75, |
| concerning the inference allowable from a party's failure to produce a witness—in this case, one of the defendants—played a critical role in the jury's deliberations ending in a verdict in plaintiff's favor and finding the non-testifying defendant 80 percent liable. Note that this pattern charge appears near the top of the plaintiff's request to charge, | concerning the inference allowable from a party's failure to produce a witness—in this case, one of the defendants—played a critical role in the jury's deliberations ending in a verdict in plaintiff's favor and finding the non-testifying defendant 80 percent liable. Note that this pattern charge appears near the top of the plaintiff's request to charge, |
| below.10. . | below.10. PJI 1:90. |
| General Instruction—Expert Witness (Transcript page 352: Court adds expert's name to instruction:)You will recall that during this trial we had a witness, Dr. Maurice Carter, testify as an expert. He was qualified as an expert and gave his opinion regarding the field of | General Instruction—Expert Witness (Transcript page 352: Court adds expert's name to instruction:)You will recall that during this trial we had a witness, Dr. Maurice Carter, testify as an expert. He was qualified as an expert and gave his opinion regarding the field of |
| medicine.11. . | medicine.11. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally12. . | Witness—Generally12. PJI 1:97. |
| General Instruction—Special Verdict (Transcript page 354 to 355: Court discussion of verdict sheet in own language, although covering same information as pattern instruction:)This case will be decided on the answers that you give to the verdict sheet. As you remember, I told you that this is just the management tool which helps you to apply the law to the facts as you find them. Now, to list several questions, the first requiring a yes or no answer, some percentages and finally numerical figures. Now, you read the question and at least five of you must agree on the answer. When five of you agree, the answer in one column and the next column, you put whether your decision was unanimous, six zero or five to one. Now, as I said, at least five of you must deliberate, but the same five people need not agree on each answer, so as soon as five of you agree you can answer the question and proceed accordingly on the verdict sheet. It also has instructions for you to follow. Each of you will be provided with a copy. There will be only one original. So do not assume from the questions or from the wording of the questions as to what the answer should be. The answers are for you to decide since you are the judges of the facts in this | General Instruction—Special Verdict (Transcript page 354 to 355: Court discussion of verdict sheet in own language, although covering same information as pattern instruction:)This case will be decided on the answers that you give to the verdict sheet. As you remember, I told you that this is just the management tool which helps you to apply the law to the facts as you find them. Now, to list several questions, the first requiring a yes or no answer, some percentages and finally numerical figures. Now, you read the question and at least five of you must agree on the answer. When five of you agree, the answer in one column and the next column, you put whether your decision was unanimous, six zero or five to one. Now, as I said, at least five of you must deliberate, but the same five people need not agree on each answer, so as soon as five of you agree you can answer the question and proceed accordingly on the verdict sheet. It also has instructions for you to follow. Each of you will be provided with a copy. There will be only one original. So do not assume from the questions or from the wording of the questions as to what the answer should be. The answers are for you to decide since you are the judges of the facts in this |
| case.13. . | case.13. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally14. . | Defined—Generally14. PJI 2:12. |
| Common Law Standard of Care—Foreseeability—Generally (modified—transcript page 355: Instead of “A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable,” court instructs:)A person is only responsible for his or her conduct if the risk of injury is greatly | Common Law Standard of Care—Foreseeability—Generally (modified—transcript page 355: Instead of “A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable,” court instructs:)A person is only responsible for his or her conduct if the risk of injury is greatly |
| foreseeable.15. . | foreseeable.15. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General16. . | General16. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript page 356 to 358: Court inserts VTL sections 1231, 1214, 1146, 1163, 1202, as follows:)Vehicle and Traffic Law, Section 1231, traffic laws apply to persons driving bicycles or skating or riding on inclined skates. Vehicle and Traffic Law, 1214, opening and closing vehicle doors. No person shall open the door of a motor vehicle the side available to moving traffic unless and until it is reasonable to do so.And can be done without interfering with the movement of other traffic. Nor shall any person leave a door open on the side of the vehicle available to moving traffic for a period of time longer than necessary to load, unload passengers. Vehicle and traffic law, 1146.Every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist and shall be warnings my summoning the horn when necessary.And Vehicle and Traffic Law, 1163. The driver of a vehicle equipped with simultaneously flashing signals shall use such signals when the vehicle is stopped and finally vehicle and traffic Law 1202, except when necessary to avoid conflict with either traffic or when in compliance with the law or the directions of a police officer or official traffic control device, no person shall stop, stand or park a vehicle on the roadway side of any vehicle stopped, standing or parked at the edge or curb of a | Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript page 356 to 358: Court inserts VTL sections 1231, 1214, 1146, 1163, 1202, as follows:)Vehicle and Traffic Law, Section 1231, traffic laws apply to persons driving bicycles or skating or riding on inclined skates. Vehicle and Traffic Law, 1214, opening and closing vehicle doors. No person shall open the door of a motor vehicle the side available to moving traffic unless and until it is reasonable to do so.And can be done without interfering with the movement of other traffic. Nor shall any person leave a door open on the side of the vehicle available to moving traffic for a period of time longer than necessary to load, unload passengers. Vehicle and traffic law, 1146.Every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist and shall be warnings my summoning the horn when necessary.And Vehicle and Traffic Law, 1163. The driver of a vehicle equipped with simultaneously flashing signals shall use such signals when the vehicle is stopped and finally vehicle and traffic Law 1202, except when necessary to avoid conflict with either traffic or when in compliance with the law or the directions of a police officer or official traffic control device, no person shall stop, stand or park a vehicle on the roadway side of any vehicle stopped, standing or parked at the edge or curb of a |
| street.17. . | street.17. PJI 2:29. |
| Statutory Standard of Care—Ordinances or Regulations (Transcript page 358 [page 359 missing from transcript]—Court inserts | Statutory Standard of Care—Ordinances or Regulations (Transcript page 358 [page 359 missing from transcript]—Court inserts |
| :)First, | 34 RCNY 4-08(e)(1):)First, |
| Section 4-08(e)(9), general no stopping zones. Stopping, standing or parking prohibited in specific places. No person shall stop, stand or park a vehicle in any of the following places unless otherwise indicated by posted signs, markings or other traffic control devices or at the direction of a law enforcement officer or as otherwise provided in their stop section. . ..(At this point, page 359 is missing from transcript. According to a summary of jury instructions at | Section 4-08(e)(9), general no stopping zones. Stopping, standing or parking prohibited in specific places. No person shall stop, stand or park a vehicle in any of the following places unless otherwise indicated by posted signs, markings or other traffic control devices or at the direction of a law enforcement officer or as otherwise provided in their stop section. . ..(At this point, page 359 is missing from transcript. According to a summary of jury instructions at |
| , | 2004 WL 5329236, |
| Court next intended to recite | Court next intended to recite |
| , | 34 RCNY 4-11(c), |
| pertaining to the pickup and discharge of passengers by for-hire vehicles. Court's notes state: “Violation of | pertaining to the pickup and discharge of passengers by for-hire vehicles. Court's notes state: “Violation of |
| ordinance-, -11(c) | ordinance-NYCRR 4-8, 4-11(c) |
| failure to discharge passenger within 12 inches of curb where there was curb space within 100 feet of discharge location.”)(Transcript page 366: The attorney for the plaintiff later pointed out that the Court had failed to read the ordinance regarding bike lanes. Before sending out the jury to deliberate, the court adds:)All right. Ladies and gentlemen, I missed one point in my charge, it was pointed out to me by counsel. We all work together as a team, like we all work together.And this has to do with the New York City Regulations. I must read 408E9. I failed to read that bicycle lane. Let me read that again. I'll start from the beginning.General no stopping zones. No person shall stop, stand or park a vehicle in any of the following places, and I read to you the traffic lanes, any lane intended for the free movement of—vehicles, except a lane immediately adjacent to a curb, unless such lane is designated by signs as a traffic lane and except as otherwise provided. In no instance shall a vehicle extend more than eight feet from the nearest curb and not bicycle lanes within a designated bicycle lane. Got that? Thank you. All | failure to discharge passenger within 12 inches of curb where there was curb space within 100 feet of discharge location.”)(Transcript page 366: The attorney for the plaintiff later pointed out that the Court had failed to read the ordinance regarding bike lanes. Before sending out the jury to deliberate, the court adds:)All right. Ladies and gentlemen, I missed one point in my charge, it was pointed out to me by counsel. We all work together as a team, like we all work together.And this has to do with the New York City Regulations. I must read 408E9. I failed to read that bicycle lane. Let me read that again. I'll start from the beginning.General no stopping zones. No person shall stop, stand or park a vehicle in any of the following places, and I read to you the traffic lanes, any lane intended for the free movement of—vehicles, except a lane immediately adjacent to a curb, unless such lane is designated by signs as a traffic lane and except as otherwise provided. In no instance shall a vehicle extend more than eight feet from the nearest curb and not bicycle lanes within a designated bicycle lane. Got that? Thank you. All |
| right.18. | right.18. PJI 2:36 |
| Comparative Fault (According to the Court's notes at | Comparative Fault (According to the Court's notes at |
| , | 2004 WL 5329236, |
| the Court considered whether to combine | the Court considered whether to combine |
| PJI 2:36 |
| with | with |
| , | PJI 2:75, |
| Motor Vehicle Accidents—Pedestrian Crossing Highway. It does not appear, however, that | Motor Vehicle Accidents—Pedestrian Crossing Highway. It does not appear, however, that |
| PJI 2:75 |
| was included in the charge to the jury. The first paragraph of | was included in the charge to the jury. The first paragraph of |
| PJI 2:36 |
| is presumably on missing transcript page 359. Transcript page 360 starts with the end of a sentence describing an aspect of comparative fault:). . .consider whether the plaintiff was also negligent and whether the plaintiff's conduct contributed to causing the accident.(Transcript pages 360 to 361: The court then delivers the second paragraph of | is presumably on missing transcript page 359. Transcript page 360 starts with the end of a sentence describing an aspect of comparative fault:). . .consider whether the plaintiff was also negligent and whether the plaintiff's conduct contributed to causing the accident.(Transcript pages 360 to 361: The court then delivers the second paragraph of |
| , | PJI 2:36, |
| and gives examples of the operation of comparative negligence when there are three parties:)Now, if you find that both defendants were negligent and the plaintiff was negligent, then you will apportion the fault between the three parties. When all the facts and circumstances, you must consider the total negligence, that is, the negligence of both the plaintiff and the defendants which contributed to causing the accident and determine what percentage of fault is chargeable to each.In your verdict, you will state the percentage you find, the total of these percentages must equal 100 percent. For example, if you should find all three parties negligent, their negligence contributed to causing the accident, and if you find that all three of them were equally negligent, then you will assess a percentage of 33 and a third to each.If you find one party more negligent than the other, you will assess a higher percentage to that party and a lower percentage to the other, but always equaling 100 percent. No matter if it's three parties or two. If it's two, and they're equally liable, it's 50 percent. You know what I'm | and gives examples of the operation of comparative negligence when there are three parties:)Now, if you find that both defendants were negligent and the plaintiff was negligent, then you will apportion the fault between the three parties. When all the facts and circumstances, you must consider the total negligence, that is, the negligence of both the plaintiff and the defendants which contributed to causing the accident and determine what percentage of fault is chargeable to each.In your verdict, you will state the percentage you find, the total of these percentages must equal 100 percent. For example, if you should find all three parties negligent, their negligence contributed to causing the accident, and if you find that all three of them were equally negligent, then you will assess a percentage of 33 and a third to each.If you find one party more negligent than the other, you will assess a higher percentage to that party and a lower percentage to the other, but always equaling 100 percent. No matter if it's three parties or two. If it's two, and they're equally liable, it's 50 percent. You know what I'm |
| saying.19. . Damages—General20. . | saying.19. PJI 2:277. Damages—General20. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering (Transcript page 361: Court adds phrase because there are more than one defendant:)If you decide that defendants, either one or both are liable, plaintiff is | Damages—Personal Injury—Injury and Pain and Suffering (Transcript page 361: Court adds phrase because there are more than one defendant:)If you decide that defendants, either one or both are liable, plaintiff is |
| entitled. . .21. . | entitled. . .21. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Ability to Enjoy | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Ability to Enjoy |
| Life)22. . | Life)22. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] |
| (Taxes)23. . | (Taxes)23. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 363: The court states that plaintiff has life expectancy of 75.6 years, which doesn't guarantee that he will live for additional 43.6 | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 363: The court states that plaintiff has life expectancy of 75.6 years, which doesn't guarantee that he will live for additional 43.6 |
| years.)24. . | years.)24. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In General (Transcript page 364: The court leaves out most of the “lost earnings” instruction, which pertains to future lost earnings.)25. Verdict Sheet (Transcript page 364: The court states:)I give the first six jurors their verdict sheet. As mentioned one of them is the original that has been marked. That's the one which you will state your verdict and that will be the official court record of your verdict in this case. The original, of course, has to be signed by all six of you, so I can know that it is actually your | Damages—Personal Injury—Loss of Earnings—In General (Transcript page 364: The court leaves out most of the “lost earnings” instruction, which pertains to future lost earnings.)25. Verdict Sheet (Transcript page 364: The court states:)I give the first six jurors their verdict sheet. As mentioned one of them is the original that has been marked. That's the one which you will state your verdict and that will be the official court record of your verdict in this case. The original, of course, has to be signed by all six of you, so I can know that it is actually your |
| verdict.26. . | verdict.26. PJI 1:29. |
| Alternate Jurors Excused (Transcript page 364: The court simply says:)Now, do the alternates have any personal items in the deliberation | Alternate Jurors Excused (Transcript page 364: The court simply says:)Now, do the alternates have any personal items in the deliberation |
| room?27. | room?27. PJI 1:28 |
| Conclusion (Transcript page 365: Court's discussion of foreperson varies somewhat from pattern instruction:)Okay. Well, let me tell you, ladies and gentlemen, that usually it is the first person that is the foreperson of the jury, but if you want, you can vote and select another foreperson, but you do need a foreperson in order to manage the deliberations in a jury. Now, just because some person is the foreperson does not mean that that person's vote gets any more weight than anyone else's. You're all in this together.2. Instructions Requested by | Conclusion (Transcript page 365: Court's discussion of foreperson varies somewhat from pattern instruction:)Okay. Well, let me tell you, ladies and gentlemen, that usually it is the first person that is the foreperson of the jury, but if you want, you can vote and select another foreperson, but you do need a foreperson in order to manage the deliberations in a jury. Now, just because some person is the foreperson does not mean that that person's vote gets any more weight than anyone else's. You're all in this together.2. Instructions Requested by |
| Plaintiff1. . | Plaintiff1. PJI 1:70. |
| Circumstantial | Circumstantial |
| Evidence2. . | Evidence2. PJI 1:75. |
| Failure to Produce | Failure to Produce |
| Witness3. . | Witness3. PJI 1:90. |
| Expert | Expert |
| Witness4. . | Witness4. PJI 1:90.1. |
| Compensation of | Compensation of |
| Expert5. . | Expert5. PJI 1:91. |
| Interested | Interested |
| Witness6. . | Witness6. PJI 1:94. |
| Deposition | Deposition |
| Testimony7. . Negligence8. . Foreseeability9. . | Testimony7. PJI 2:10. Negligence8. PJI 2:12. Foreseeability9. PJI 2:26. |
| Statutory Standard of Care—VTL Violation§§ 1214 opening door, 1146 Driver to exercise due care, 1163 (d) failure to use signal when changing lanes, 1163 (e) failure to use hazard lights when stopping on roadway, 1190 Reckless driving, 1202 (1)(a) double parking(Plaintiff specifies the following sections of the Regulations of the City of New York:)34 RCNY 4-8, 4-11, 4-12 failure to discharge passenger within 12 inches of curb where there was curb space within 100 feet of discharge | Statutory Standard of Care—VTL Violation§§ 1214 opening door, 1146 Driver to exercise due care, 1163 (d) failure to use signal when changing lanes, 1163 (e) failure to use hazard lights when stopping on roadway, 1190 Reckless driving, 1202 (1)(a) double parking(Plaintiff specifies the following sections of the Regulations of the City of New York:)34 RCNY 4-8, 4-11, 4-12 failure to discharge passenger within 12 inches of curb where there was curb space within 100 feet of discharge |
| location.10. . | location.10. PJI 2:70. |
| Proximate | Proximate |
| Cause11. . | Cause11. PJI 2:77. |
| Duty to other | Duty to other |
| motorists12. . | motorists12. PJI 2:77.1. |
| Duty to see that which should be | Duty to see that which should be |
| seen13. . | seen13. PJI 2:83. |
| Sudden | Sudden |
| Stopping14. . Damages—General15. . | Stopping14. PJI 2:277. Damages—General15. PJI 2:280. |
| Damages—Personal Injury—Pain and | Damages—Personal Injury—Pain and |
| Suffering16. . | Suffering16. PJI 2:280.1. |
| Enjoyment of | Enjoyment of |
| life17. . | life17. PJI 2:281. |
| Damages—Personal Injury—Permanence—Life Expectancy | Damages—Personal Injury—Permanence—Life Expectancy |
| Tables18. . | Tables18. PJI 2:88. |
| A,B,C,E,F,G (Plaintiff here requests a variety of charges from the series of No-Fault Instructions starting with 2:88A:)Injury Resulting in Death; Significant Disfigurement; Fracture; Permanent Consequential Limitation of Use of Body Organ or Member; Significant Limitation of Use of Body Function or System; Non-Permanent Medically Determined Injury That Prevents Performance of Usual and Customary Daily Activities For 90 of 180 Days Immediately Subsequent to | A,B,C,E,F,G (Plaintiff here requests a variety of charges from the series of No-Fault Instructions starting with 2:88A:)Injury Resulting in Death; Significant Disfigurement; Fracture; Permanent Consequential Limitation of Use of Body Organ or Member; Significant Limitation of Use of Body Function or System; Non-Permanent Medically Determined Injury That Prevents Performance of Usual and Customary Daily Activities For 90 of 180 Days Immediately Subsequent to |
| Injury.19. . | Injury.19. PJI 2:285. |
| Damages—Personal Injury—Expenses | Damages—Personal Injury—Expenses |
| Incurred20. . | Incurred20. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings(Plaintiff adds:)In addition to the foregoing, Plaintiffs reserves its rights to object to Defendants' Requests to Charge and to supplement or modify this Request to Charge as may be warranted at the time of trial.3. Instructions Requested by | Damages—Personal Injury—Loss of Earnings(Plaintiff adds:)In addition to the foregoing, Plaintiffs reserves its rights to object to Defendants' Requests to Charge and to supplement or modify this Request to Charge as may be warranted at the time of trial.3. Instructions Requested by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review of Principles | Review of Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . Five-Sixths-Verdict8. . | Exhibits7. PJI 1:26. Five-Sixths-Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . | Sympathy9. PJI 1:91. |
| Interested Witness: Plaintiff (actual title of instruction is “General Instruction-Interested | Interested Witness: Plaintiff (actual title of instruction is “General Instruction-Interested |
| Witness-Generally”)10. . | Witness-Generally”)10. PJI 1:97. |
| General Instruction—Special | General Instruction—Special |
| Verdict11. . | Verdict11. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| [Defined—Generally]12. . | [Defined—Generally]12. PJI 2:12. |
| Foreseeability (actual title of instruction is “Common Law Standard of | Foreseeability (actual title of instruction is “Common Law Standard of |
| Care—Foreseeability—Generally”)13. . | Care—Foreseeability—Generally”)13. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Plaintiff specifies:)VTL. § 1231—Traffic Laws apply to persons riding bicycles or skating or gliding on in line | Statutory Standard of Care—Vehicle and Traffic Law Violation (Plaintiff specifies:)VTL. § 1231—Traffic Laws apply to persons riding bicycles or skating or gliding on in line |
| skates.13. . | skates.13. PJI 2:36. |
| Comparative Negligence (actual title of instruction is “Comparative | Comparative Negligence (actual title of instruction is “Comparative |
| Fault”)14. . | Fault”)14. PJI 2:70. |
| Proximate Cause [—In General](Plaintiff adds:)PLEASE TAKE NOTICE, that the above requests are being submitted, in accordance with the requests and at the direction of this Court at a time prior to the close of all evidence in this case, and at a time before all parties have rested.Accordingly, the defendants respectfully reserve the right to submit or request additional charges on the law after all sides have rested and evidence is completed.C. Case Documents Available on Westlaw1.Appellate Case Report: 22 A.D.3d 232, 801 N.Y.S.2d 589 (1st Dep't 2005)Jury Instruction (Summary of Judge's Charge, and Verdict Sheet), 2004 WL 5329236Jury Instruction (Plaintiff's Request to Charge), 2004 WL 5329237Jury Instruction (Defendant's Request to Charge), 2004 WL 5329238Jury Instruction (Judge's Charge), 2002 WL 34214922Verdict, Agreement and Settlement (Stipulation of Discontinuance), | Proximate Cause [—In General](Plaintiff adds:)PLEASE TAKE NOTICE, that the above requests are being submitted, in accordance with the requests and at the direction of this Court at a time prior to the close of all evidence in this case, and at a time before all parties have rested.Accordingly, the defendants respectfully reserve the right to submit or request additional charges on the law after all sides have rested and evidence is completed.C. Case Documents Available on Westlaw1.Appellate Case Report: 22 A.D.3d 232, 801 N.Y.S.2d 589 (1st Dep't 2005)Jury Instruction (Summary of Judge's Charge, and Verdict Sheet), 2004 WL 5329236Jury Instruction (Plaintiff's Request to Charge), 2004 WL 5329237Jury Instruction (Defendant's Request to Charge), 2004 WL 5329238Jury Instruction (Judge's Charge), 2002 WL 34214922Verdict, Agreement and Settlement (Stipulation of Discontinuance), |
| 2.Sample | 2006 WL 45778942.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“vehic! & negligence”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“vehic! & negligence”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:5 Motor | 4:48, 7:209, 7:209A§ 4:5 Motor |
| vehicle negligence, negligent maintenance of roadway; personal injury: crushed leg/One plaintiff, multiple defendantsA. BackgroundType of Case: Motor Vehicle Negligence; Negligent Maintenance of RoadType of Injury: Crushed leg, requiring amputation over right knee.Case Name: Anna Marie Hoenig, Plaintiff, v. Park Royal Owners, Inc., Azab K. Shyed, Ben Saul Express Cab Corp., The City of New York, New York City Health & Hospitals Corporation, Park Royal Management Corp., St. Clare's Hospital & Health Center, Park Royal Realty Management Corp. and Consolidated Edison, Defendants.Court: Supreme Court of New York, New York CountyJudge: Paula OmanskyDocket Number: 19227/91Verdict Date: September 1999Outcome: $7,663,078, apportioning liability 55% against defendant City of New York and 45% against defendants taxi cab driver and owner.Brief Summary of Facts: Plaintiff's leg was crushed when she got out of her car, which she had parked in a lane of traffic in front of a hotel, and was struck by a cab that skidded on ice. Leg had to be amputated over right knee. Motorist brought action against driver and owner of taxi cab and against city, seeking to recover damages for injury sustained. The jury found that the ice that caused the cab to skid was not formed from snow that fell on the day of the accident but rather from a combination of that snowfall and a residue of prior snowfalls that had not been cleared by the city.B. Jury Instructions Given by the | vehicle negligence, negligent maintenance of roadway; personal injury: crushed leg/One plaintiff, multiple defendantsA. BackgroundType of Case: Motor Vehicle Negligence; Negligent Maintenance of RoadType of Injury: Crushed leg, requiring amputation over right knee.Case Name: Anna Marie Hoenig, Plaintiff, v. Park Royal Owners, Inc., Azab K. Shyed, Ben Saul Express Cab Corp., The City of New York, New York City Health & Hospitals Corporation, Park Royal Management Corp., St. Clare's Hospital & Health Center, Park Royal Realty Management Corp. and Consolidated Edison, Defendants.Court: Supreme Court of New York, New York CountyJudge: Paula OmanskyDocket Number: 19227/91Verdict Date: September 1999Outcome: $7,663,078, apportioning liability 55% against defendant City of New York and 45% against defendants taxi cab driver and owner.Brief Summary of Facts: Plaintiff's leg was crushed when she got out of her car, which she had parked in a lane of traffic in front of a hotel, and was struck by a cab that skidded on ice. Leg had to be amputated over right knee. Motorist brought action against driver and owner of taxi cab and against city, seeking to recover damages for injury sustained. The jury found that the ice that caused the cab to skid was not formed from snow that fell on the day of the accident but rather from a combination of that snowfall and a residue of prior snowfalls that had not been cleared by the city.B. Jury Instructions Given by the |
| Court1. . | Court1. PJI 1:20. |
| Introduction (Transcript page 1044—The court adds statement that jury will not deliberate until tomorrow:)Tomorrow you will retire for your deliberations on this. You will go home on | Introduction (Transcript page 1044—The court adds statement that jury will not deliberate until tomorrow:)Tomorrow you will retire for your deliberations on this. You will go home on |
| this.2. . | this.2. PJI 1:21. |
| Review Principles Stated (Transcript pages 1044 to 1045—The court leaves out, “You are not to ask anyone else about the | Review Principles Stated (Transcript pages 1044 to 1045—The court leaves out, “You are not to ask anyone else about the |
| law.”)3. . | law.”)3. PJI 1:27. |
| Exclude Sympathy (Transcript page 1046—The court leaves out: “or, indeed, any consideration outside the case as it has been presented to you in this | Exclude Sympathy (Transcript page 1046—The court leaves out: “or, indeed, any consideration outside the case as it has been presented to you in this |
| courtroom.”)4. . | courtroom.”)4. PJI 1:22. |
| Falsus in Uno (Transcript page 1047—The court omits: “By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to | Falsus in Uno (Transcript page 1047—The court omits: “By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to |
| it.”)5. . | it.”)5. PJI 1:91. |
| General Instruction—Interested Witness—Generally (Transcript pages 1047 to 1049—The court adds to instruction by mentioning each interested witness:)First the plaintiff. The plaintiff testified before you, and I instruct you that as a party to the action, she is an interested witness.* * *Now, we also heard indirectly from the operator of the vehicle of the taxicab, Mr. Shyed. I instruct you that as the operator of the vehicle and charged with having caused in part the injury to the plaintiff, the operator of the vehicle is also an interested witness.Further, you heard Sergeant—now Sergeant McPartlin testify, and he is employed by the City of New York. He is not a party to the case, but you should, you are entitled to consider whether his relationship with the City of New York affects or influences or influenced his testimony by the mere fact that he was an | General Instruction—Interested Witness—Generally (Transcript pages 1047 to 1049—The court adds to instruction by mentioning each interested witness:)First the plaintiff. The plaintiff testified before you, and I instruct you that as a party to the action, she is an interested witness.* * *Now, we also heard indirectly from the operator of the vehicle of the taxicab, Mr. Shyed. I instruct you that as the operator of the vehicle and charged with having caused in part the injury to the plaintiff, the operator of the vehicle is also an interested witness.Further, you heard Sergeant—now Sergeant McPartlin testify, and he is employed by the City of New York. He is not a party to the case, but you should, you are entitled to consider whether his relationship with the City of New York affects or influences or influenced his testimony by the mere fact that he was an |
| employee.6. . | employee.6. PJI 2:245. |
| Vicarious Responsibility—Owner of Vehicle, for Acts of Operator—Permission, Express or Implied (Transcript pages 1049 to 1050—The court omits much of instruction, and personalizes it.)I also instruct you that a defendant in this case is the owner of the vehicle, and under our law, under the statute applicable in New York, the owner of a vehicle although not personally driving the vehicle, is fully responsible for injuries resulting from its negligent operation by another regardless of the purpose for which it was being used if such use by the driver was with the expressed or implied permission of the owner.I tell you that there is no issue but that the defendant Ben Saul Express Cab Corporation authorized Mr. Shyed to use the vehicle. Therefore, insofar as you find that the operator of the vehicle, Mr. Shyed, is liable, then that will also be a finding that the owner of the vehicle is liable too, because that's the law in New | Vicarious Responsibility—Owner of Vehicle, for Acts of Operator—Permission, Express or Implied (Transcript pages 1049 to 1050—The court omits much of instruction, and personalizes it.)I also instruct you that a defendant in this case is the owner of the vehicle, and under our law, under the statute applicable in New York, the owner of a vehicle although not personally driving the vehicle, is fully responsible for injuries resulting from its negligent operation by another regardless of the purpose for which it was being used if such use by the driver was with the expressed or implied permission of the owner.I tell you that there is no issue but that the defendant Ben Saul Express Cab Corporation authorized Mr. Shyed to use the vehicle. Therefore, insofar as you find that the operator of the vehicle, Mr. Shyed, is liable, then that will also be a finding that the owner of the vehicle is liable too, because that's the law in New |
| York.7. . | York.7. PJI 1:90. |
| General Instruction—Expert Witness (Transcript page 1050—The court reminds jury of witnesses.)Now, expert witnesses. We have had several. We had as expert witnesses, Dr. Jeffrey Kaplan who is an expert in orthopedic medicine, Walter Zeltmann and Conrad Gosset, both meteorologists and Les Seplaki, an economist. You heard them, you heard them give their credentials their background and experience. They also gave their opinions concerning issues in this case.(The court then recites rule, but inserts:)They were also asked hypothetical questions based on evidentiary facts in this case or facts about which there was no dispute. They were questioned on those hypotheticals, and they gave opinions with respect to issues in the | General Instruction—Expert Witness (Transcript page 1050—The court reminds jury of witnesses.)Now, expert witnesses. We have had several. We had as expert witnesses, Dr. Jeffrey Kaplan who is an expert in orthopedic medicine, Walter Zeltmann and Conrad Gosset, both meteorologists and Les Seplaki, an economist. You heard them, you heard them give their credentials their background and experience. They also gave their opinions concerning issues in this case.(The court then recites rule, but inserts:)They were also asked hypothetical questions based on evidentiary facts in this case or facts about which there was no dispute. They were questioned on those hypotheticals, and they gave opinions with respect to issues in the |
| case.9. . | case.9. PJI 1:75. |
| General Instruction—Evidence—Failure to Produce Witness—In General (Transcript page 1052—The court personalizes this instruction:)Now, a party is not required to call any particular witness or person as a witness. However, the failure to call a certain person as a witness, may be the basis for an inference against the party not calling the witness.For example, in this case, the defendant, named defendant, did not appear at all. There was no explanation given for his non-appearance. There was no reason that he was hospitalized or anything like that. So that, basically, you heard no explanation.Under those circumstances, you are entitled to conclude that the testimony of Mr. Shyed would not support his own position on the question of liability and really on all the other evidence in the case and would not contradict the evidence offered by the plaintiff on the issue of liability.Although you are not required to, you are entitled to draw the strongest inference against defendant Shyed on any issue that involves him in particular with liability and degree of fault and any statements with respect to comparative | General Instruction—Evidence—Failure to Produce Witness—In General (Transcript page 1052—The court personalizes this instruction:)Now, a party is not required to call any particular witness or person as a witness. However, the failure to call a certain person as a witness, may be the basis for an inference against the party not calling the witness.For example, in this case, the defendant, named defendant, did not appear at all. There was no explanation given for his non-appearance. There was no reason that he was hospitalized or anything like that. So that, basically, you heard no explanation.Under those circumstances, you are entitled to conclude that the testimony of Mr. Shyed would not support his own position on the question of liability and really on all the other evidence in the case and would not contradict the evidence offered by the plaintiff on the issue of liability.Although you are not required to, you are entitled to draw the strongest inference against defendant Shyed on any issue that involves him in particular with liability and degree of fault and any statements with respect to comparative |
| fault.10. . | fault.10. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits11. . | Exhibits11. PJI 1:70. |
| General Instruction—Circumstantial Evidence (Transcript pages 1054 to 1055—The court adds the following to the instruction:)Circumstantial evidence and direct evidence on a condition of the roadway. There is circumstantial evidence based on weather charts and other documents and other records which are in evidence before you as to what the condition of the roadway was.You have heard from the attorneys already on the day before the accident. That's the only issue on which there is circumstantial evidence in my view. Other than that, you have had direct evidence, namely people saying this is what I saw, this is what happened before my eyes, this is what I did, etcetera.Author's Comment: The judge's comment on “the only issue on which there is circumstantial evidence” seems legitimate under the rule that the charge should discuss the evidence and relate it to the principles of law while avoiding characterizing an issue or witness in a manner that may be prejudicial to either party. See 1A | General Instruction—Circumstantial Evidence (Transcript pages 1054 to 1055—The court adds the following to the instruction:)Circumstantial evidence and direct evidence on a condition of the roadway. There is circumstantial evidence based on weather charts and other documents and other records which are in evidence before you as to what the condition of the roadway was.You have heard from the attorneys already on the day before the accident. That's the only issue on which there is circumstantial evidence in my view. Other than that, you have had direct evidence, namely people saying this is what I saw, this is what happened before my eyes, this is what I did, etcetera.Author's Comment: The judge's comment on “the only issue on which there is circumstantial evidence” seems legitimate under the rule that the charge should discuss the evidence and relate it to the principles of law while avoiding characterizing an issue or witness in a manner that may be prejudicial to either party. See 1A |
| , | NY PJI3d 1:1, |
| at 5 to 6 (2018).(The court omits the section beginning, “Suppose, for example, the witness testifies that the water glass was located equally distant from the court clerk and me.” (Transcript page 1057:) The court adds:)In reaching your decision, your conclusion, you may not guess or speculate. You have to look at all of the evidence both direct and circumstantial and then draw your conclusion as to what the facts are because that is your job to find the facts.I think that I warned you, that is the hard job in the | at 5 to 6 (2018).(The court omits the section beginning, “Suppose, for example, the witness testifies that the water glass was located equally distant from the court clerk and me.” (Transcript page 1057:) The court adds:)In reaching your decision, your conclusion, you may not guess or speculate. You have to look at all of the evidence both direct and circumstantial and then draw your conclusion as to what the facts are because that is your job to find the facts.I think that I warned you, that is the hard job in the |
| lawsuit.12. . | lawsuit.12. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different Issues (Transcript pages 1058 to 1059—Court includes specifics:)Now, in this case, the plaintiff, Anna Marie Hoenig, claims that she was injured and both defendants are liable in negligence and liable to her for damages because of their negligence. The taxi driver for driving carelessly under the circumstances and the City of New York for failing to properly clean the roadway of snow and ice.The defendants also claim that Ms. Hoenig was negligent by her operation of the car, by her conduct in stopping the car where she stopped it, how she got out, and if there is any negligence to be found that she is also responsible for contributing to her own injuries by her own action.The plaintiff has the burden of proving that the defendants were negligent and that their negligence was, individually and taken together, substantial factors in causing her, plaintiff's injuries. The defendants have the burden of proving that Ms. Hoenig was negligent and that her negligence was a contributing and substantial factor in causing her | General Instruction—Burden of Proof—When Burden Differs on Different Issues (Transcript pages 1058 to 1059—Court includes specifics:)Now, in this case, the plaintiff, Anna Marie Hoenig, claims that she was injured and both defendants are liable in negligence and liable to her for damages because of their negligence. The taxi driver for driving carelessly under the circumstances and the City of New York for failing to properly clean the roadway of snow and ice.The defendants also claim that Ms. Hoenig was negligent by her operation of the car, by her conduct in stopping the car where she stopped it, how she got out, and if there is any negligence to be found that she is also responsible for contributing to her own injuries by her own action.The plaintiff has the burden of proving that the defendants were negligent and that their negligence was, individually and taken together, substantial factors in causing her, plaintiff's injuries. The defendants have the burden of proving that Ms. Hoenig was negligent and that her negligence was a contributing and substantial factor in causing her |
| injuries.13. . | injuries.13. PJI 2:36. |
| Comparative Fault (Transcript pages 1059 to 1060: The court's discussion is not similar to the pattern instruction. It uses the “magical formula” language of | Comparative Fault (Transcript pages 1059 to 1060: The court's discussion is not similar to the pattern instruction. It uses the “magical formula” language of |
| , , | PJI 1:8, 1:21, |
| and | and |
| :)You | 1:41:)You |
| will see this on the verdict sheet. You will be asked question by question on the issue of negligence. You must make specific findings. The way it reads, first you look to Mr. Shyed's negligence. Then the third question is whether or not there was snow or ice on the roadway on West 73rd Street between Central Park West and Columbus Avenue on the day before the accident. I will discuss that a little bit later again.Then we will reach the issue. If you decide that affirmatively that there was such snow and ice, you will then reach the issue of the City's negligence.Finally after the defendants, you will come back and you will see on the verdict sheet which is here, you will then assess whether or not the plaintiff was negligent.Then you do percentages. There is no magical formula by which you decide percentages of fault, but you are required to apportion liability, if you find that all parties are negligent.Obviously, if you find that any one or more parties were not negligent, then you will recite zero percent or a percentage for that party in the question on the verdict sheet which asks you to apportion negligence.As I say, there is no magical formula by which you decide what those percentages are. No one actually, I suppose unless you are doing accounting, is capable of exact precision. The only thing of exact precision was the amount of precipitation. That's the only thing that was measurable.It is up to you as I have said to decide what a fair division of the responsibilities is among the defendants and also on the plaintiff's part, if you decide that the plaintiff also was | will see this on the verdict sheet. You will be asked question by question on the issue of negligence. You must make specific findings. The way it reads, first you look to Mr. Shyed's negligence. Then the third question is whether or not there was snow or ice on the roadway on West 73rd Street between Central Park West and Columbus Avenue on the day before the accident. I will discuss that a little bit later again.Then we will reach the issue. If you decide that affirmatively that there was such snow and ice, you will then reach the issue of the City's negligence.Finally after the defendants, you will come back and you will see on the verdict sheet which is here, you will then assess whether or not the plaintiff was negligent.Then you do percentages. There is no magical formula by which you decide percentages of fault, but you are required to apportion liability, if you find that all parties are negligent.Obviously, if you find that any one or more parties were not negligent, then you will recite zero percent or a percentage for that party in the question on the verdict sheet which asks you to apportion negligence.As I say, there is no magical formula by which you decide what those percentages are. No one actually, I suppose unless you are doing accounting, is capable of exact precision. The only thing of exact precision was the amount of precipitation. That's the only thing that was measurable.It is up to you as I have said to decide what a fair division of the responsibilities is among the defendants and also on the plaintiff's part, if you decide that the plaintiff also was |
| negligent.14. . | negligent.14. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined—Generally. (Transcript pages 1061 to 1062: The court starts discussion with:)Now, we have been talking a lot about negligence. Negligence—are you ready, because this is a heavy. Negligence is lack of ordinary care. That's what negligence is. To be careful. I am going to continue and read a lot, but keep that in mind. Basically that is what negligence is, that you didn't keep a proper look out and you weren't paying attention, that you were | Common Law Standard of Care—Negligence Defined—Generally. (Transcript pages 1061 to 1062: The court starts discussion with:)Now, we have been talking a lot about negligence. Negligence—are you ready, because this is a heavy. Negligence is lack of ordinary care. That's what negligence is. To be careful. I am going to continue and read a lot, but keep that in mind. Basically that is what negligence is, that you didn't keep a proper look out and you weren't paying attention, that you were |
| careless.15. . | careless.15. PJI 2:12. |
| Common Law Standard of Care—Foreseeability—Generally (Transcript pages 1063 to 1064: After instruction, the court adds, regarding this lawsuit:)In this case, each party has claims of negligence. The plaintiff, as I said, claims that the taxi driver was negligent in driving on West 73rd Street at what the plaintiff claims is an unreasonable rate of speed given the circumstances of the street that night. There was a sheet of ice; that the taxi driver lost control of the car and skidded. It was not an excessive rate of speed, but the claim is that the taxi driver was negligent.The City also shares in claiming that the taxi driver was negligent.The plaintiff claims that the City was negligent because it didn't do a proper job in removing snow and ice from the roadway or ice from the roadway on West 73rd Street, given what the plaintiff claims was an accumulation of snow and ice dating from at least January—mid January which was exacerbated by the snowfall on January 21st when the accident happened.The defendants claim that the plaintiff was negligent because of parking in what they claim was a travel lane, stopping the car. There are a whole list of traffic regulations that I am going to get into very shortly as to what they claim the plaintiff did wrong. But basically, it was stopping in the no stopping zone and parking in a no parking zone.There is a dispute. Obviously, there is a dispute between the parties in these claims.Author's Comment: The judge's addition to the charge here is consistent with the statement that “[t]he charge should be related to the particular facts of the case.” | Common Law Standard of Care—Foreseeability—Generally (Transcript pages 1063 to 1064: After instruction, the court adds, regarding this lawsuit:)In this case, each party has claims of negligence. The plaintiff, as I said, claims that the taxi driver was negligent in driving on West 73rd Street at what the plaintiff claims is an unreasonable rate of speed given the circumstances of the street that night. There was a sheet of ice; that the taxi driver lost control of the car and skidded. It was not an excessive rate of speed, but the claim is that the taxi driver was negligent.The City also shares in claiming that the taxi driver was negligent.The plaintiff claims that the City was negligent because it didn't do a proper job in removing snow and ice from the roadway or ice from the roadway on West 73rd Street, given what the plaintiff claims was an accumulation of snow and ice dating from at least January—mid January which was exacerbated by the snowfall on January 21st when the accident happened.The defendants claim that the plaintiff was negligent because of parking in what they claim was a travel lane, stopping the car. There are a whole list of traffic regulations that I am going to get into very shortly as to what they claim the plaintiff did wrong. But basically, it was stopping in the no stopping zone and parking in a no parking zone.There is a dispute. Obviously, there is a dispute between the parties in these claims.Author's Comment: The judge's addition to the charge here is consistent with the statement that “[t]he charge should be related to the particular facts of the case.” |
| .16. . | PJI 2:12.16. PJI 2:70. |
| Proximate Cause—In General (Transcript pages 1064 to 1065—The court prefaces discussion by noting that the words “proximate cause” may no longer be used:)Now, proximate cause, we are not allowed to use that word anymore because the powers at be in the court system state that people confuse proximate with approximate. Strike that word “proximate” cause. We use a different | Proximate Cause—In General (Transcript pages 1064 to 1065—The court prefaces discussion by noting that the words “proximate cause” may no longer be used:)Now, proximate cause, we are not allowed to use that word anymore because the powers at be in the court system state that people confuse proximate with approximate. Strike that word “proximate” cause. We use a different |
| terminology.17. . | terminology.17. PJI 2:71. |
| Proximate Cause—Concurrent Causes (Transcript page 1065—The court starts discussion with the following, before reciting instruction:)Whether the negligence of a particular party was a substantial factor in causing an injury, does not necessarily depend on the percentage of fault that may be apportioned to that party.(Transcript pages 1065 to 1066—The court adds, regarding this lawsuit:)All parties pointing the finger at the other as being negligent, claim that all the acts of each party were substantial factors in bringing about the injury. The defendants in driving or clean up, and the plaintiff in parking or stopping.18. (Transcript pages 1066 to 1067—does not correlate with PJI)I don't mean to marshal the facts in this case. I am a not giving you summations because you have heard hours of summations of the facts. My charge is long enough without the summation. I am just giving you a general overview so that if I read these instructions, they don't become divorced from the facts of the case. I am just trying to put it in context. I don't mean to give all the facts in this case or all the claims of the parties or their positions in the | Proximate Cause—Concurrent Causes (Transcript page 1065—The court starts discussion with the following, before reciting instruction:)Whether the negligence of a particular party was a substantial factor in causing an injury, does not necessarily depend on the percentage of fault that may be apportioned to that party.(Transcript pages 1065 to 1066—The court adds, regarding this lawsuit:)All parties pointing the finger at the other as being negligent, claim that all the acts of each party were substantial factors in bringing about the injury. The defendants in driving or clean up, and the plaintiff in parking or stopping.18. (Transcript pages 1066 to 1067—does not correlate with PJI)I don't mean to marshal the facts in this case. I am a not giving you summations because you have heard hours of summations of the facts. My charge is long enough without the summation. I am just giving you a general overview so that if I read these instructions, they don't become divorced from the facts of the case. I am just trying to put it in context. I don't mean to give all the facts in this case or all the claims of the parties or their positions in the |
| case.19. . | case.19. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript pages 1066 to 1067—The court recites VTL sections applied to defendant taxi driver:)Plaintiff claims that Shyed failed to comply with Section 1146 of the Vehicle and Traffic Law, and I am going to read you a division of the law briefly.Under Section 1146 of the Vehicle and Traffic Law, it says as follows:Every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist or pedestrian upon any roadway and shall give warning by sounding the horn when necessary.(The court recites pattern | Statutory Standard of Care—Vehicle and Traffic Law Violation (Transcript pages 1066 to 1067—The court recites VTL sections applied to defendant taxi driver:)Plaintiff claims that Shyed failed to comply with Section 1146 of the Vehicle and Traffic Law, and I am going to read you a division of the law briefly.Under Section 1146 of the Vehicle and Traffic Law, it says as follows:Every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist or pedestrian upon any roadway and shall give warning by sounding the horn when necessary.(The court recites pattern |
| instruction.)20. . | instruction.)20. PJI 2:29. |
| Statutory Standard of Care—Ordinances or Regulations (Transcript pages 1067 to 1073—After reciting instruction, court reads local traffic rules:)So, now, let me find these.First from the definition of the Local Traffic Rules that the plaintiff claims that defendant Shyed violated, I will read you the definition. This is from the New York City Department of Transportation, Section 4-01 definitions.Parking: Parking shall mean the standing of a vehicle whether occupied or not otherwise than temporarily for the purpose of and while actually engaged in loading or unloading property or passengers.Standing: The term standing means the stopping of the vehicle whether occupied or not otherwise than temporarily for the purpose of and while actually engaged in receiving and discharging passengers.Also, complaining of defendant Shyed, Section 4-06.(1) No person shall drive a vehicle at a speed greater than thirty miles per hour except where signs indicate speed limit.(3) Notwithstanding the foregoing provisions of this section, no person shall drive a vehicle on a highway or roadway at a speed greater than the lesser of the posted speed limit or the speed that is reasonable and prudent under the conditions then existing, while also taking into account any potential hazards. In any event, speed shall be so controlled as may be necessary to avoid colliding with any person, vehicles, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.Now, the City of New York complains of the plaintiff, and I will read you a lot here, lots of traffic violations alleged. I don't take any position.The defendant, the City, complains that the plaintiff violated the following section of the Department of Transportation Rules and Regulations, Section 4- 08.(1) Compliance with Rules. No person shall stop, stand or park a vehicle whether attended or unattended other than in accordance with authorized signs, pavement markings or other traffic control devices.Also claiming violation of Section 4-08.(4) When parking is prohibited by signs or rules, no person shall stop a vehicle attended or unattended except temporarily for the purpose of and while expeditiously receiving or discharging passengers or loading or unloading property to or from the curb.4-08 (E) General no stopping zones. That is stopping, standing and parking prohibited in certain places. No person shall stop, stand or park a vehicle in any of the following places:Including (1) Traffic Lanes. In any lane intended for the free movement of vehicles except a lane immediately adjacent to the curb unless such lane is designated by signs as a traffic lane, and except as otherwise provided here in this next section.General no standing zones. No person shall stand or park a vehicle in any of the following places unless otherwise indicated, including double parking.So repeating that. No person shall stand or park a vehicle on the roadway side of a vehicle stopped, standing or parked at the curb.The defendant City complains that the plaintiff violated 4-08M2. No person shall place a vehicle at a angle to the curb except when such angle placement is authorized by rules or by signs.Still reading from alleged violation.4-08 (5) No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle and effectively setting the brake.The City also, like the plaintiff, claims that the defendant Shyed violated the sections of the New York City Traffic Rules and Regulations which I just read to you. I will not read them again. I think that I have covered them all. I will check just to make sure, because if I do not check, they will come up and tell me, Judge, you didn't read it. So I have to check.Compliance with rules, I read that.Section 4-06, speed, I read that. Maximum, thirty miles an hour.Restrictions on driving on the sidewalk, this is the City's claim against Shyed.No person shall drive within any sidewalk area except at a permanent or temporary driveway.Dangerous driving. No person shall operate a vehicle in a manner that will endanger any person or property.Those are the local rules and regulations.I think that I have read all of those that you gave me of the local rules and statutes. I am not through with motor vehicle instructions regarding motor | Statutory Standard of Care—Ordinances or Regulations (Transcript pages 1067 to 1073—After reciting instruction, court reads local traffic rules:)So, now, let me find these.First from the definition of the Local Traffic Rules that the plaintiff claims that defendant Shyed violated, I will read you the definition. This is from the New York City Department of Transportation, Section 4-01 definitions.Parking: Parking shall mean the standing of a vehicle whether occupied or not otherwise than temporarily for the purpose of and while actually engaged in loading or unloading property or passengers.Standing: The term standing means the stopping of the vehicle whether occupied or not otherwise than temporarily for the purpose of and while actually engaged in receiving and discharging passengers.Also, complaining of defendant Shyed, Section 4-06.(1) No person shall drive a vehicle at a speed greater than thirty miles per hour except where signs indicate speed limit.(3) Notwithstanding the foregoing provisions of this section, no person shall drive a vehicle on a highway or roadway at a speed greater than the lesser of the posted speed limit or the speed that is reasonable and prudent under the conditions then existing, while also taking into account any potential hazards. In any event, speed shall be so controlled as may be necessary to avoid colliding with any person, vehicles, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.Now, the City of New York complains of the plaintiff, and I will read you a lot here, lots of traffic violations alleged. I don't take any position.The defendant, the City, complains that the plaintiff violated the following section of the Department of Transportation Rules and Regulations, Section 4- 08.(1) Compliance with Rules. No person shall stop, stand or park a vehicle whether attended or unattended other than in accordance with authorized signs, pavement markings or other traffic control devices.Also claiming violation of Section 4-08.(4) When parking is prohibited by signs or rules, no person shall stop a vehicle attended or unattended except temporarily for the purpose of and while expeditiously receiving or discharging passengers or loading or unloading property to or from the curb.4-08 (E) General no stopping zones. That is stopping, standing and parking prohibited in certain places. No person shall stop, stand or park a vehicle in any of the following places:Including (1) Traffic Lanes. In any lane intended for the free movement of vehicles except a lane immediately adjacent to the curb unless such lane is designated by signs as a traffic lane, and except as otherwise provided here in this next section.General no standing zones. No person shall stand or park a vehicle in any of the following places unless otherwise indicated, including double parking.So repeating that. No person shall stand or park a vehicle on the roadway side of a vehicle stopped, standing or parked at the curb.The defendant City complains that the plaintiff violated 4-08M2. No person shall place a vehicle at a angle to the curb except when such angle placement is authorized by rules or by signs.Still reading from alleged violation.4-08 (5) No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle and effectively setting the brake.The City also, like the plaintiff, claims that the defendant Shyed violated the sections of the New York City Traffic Rules and Regulations which I just read to you. I will not read them again. I think that I have covered them all. I will check just to make sure, because if I do not check, they will come up and tell me, Judge, you didn't read it. So I have to check.Compliance with rules, I read that.Section 4-06, speed, I read that. Maximum, thirty miles an hour.Restrictions on driving on the sidewalk, this is the City's claim against Shyed.No person shall drive within any sidewalk area except at a permanent or temporary driveway.Dangerous driving. No person shall operate a vehicle in a manner that will endanger any person or property.Those are the local rules and regulations.I think that I have read all of those that you gave me of the local rules and statutes. I am not through with motor vehicle instructions regarding motor |
| vehicles.21. . | vehicles.21. PJI 2:76. |
| Motor Vehicle Accidents—Pedestrian Walking Along Roadway (Transcript pages 1073 to 1074—After re-stating the “prudent person” instruction of | Motor Vehicle Accidents—Pedestrian Walking Along Roadway (Transcript pages 1073 to 1074—After re-stating the “prudent person” instruction of |
| , | PJI 2:10, |
| court recites instruction. Instruction specifies that Shyed was the driver, and that the plaintiff was also a pedestrian. Regarding pedestrian, Court replaces instruction about walking on “left side of the road” with instruction about walking on the | court recites instruction. Instruction specifies that Shyed was the driver, and that the plaintiff was also a pedestrian. Regarding pedestrian, Court replaces instruction about walking on “left side of the road” with instruction about walking on the |
| sidewalk.)22. . | sidewalk.)22. PJI 2:77. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, In | Motor Vehicle Accidents—Duty Toward Other Motorists, In |
| General23. . | General23. PJI 2:77.1. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, In General [Supplemental | Motor Vehicle Accidents—Duty Toward Other Motorists, In General [Supplemental |
| Instruction]24. . | Instruction]24. PJI 2:84. |
| Motor Vehicle | Motor Vehicle |
| Accidents—Skidding25. | Accidents—Skidding25. PJI 2:225C |
| (formerly | (formerly |
| ). | PJI 2:225D). |
| Municipal Liability—Public Premises and Ways—Snow and Ice (Transcript pages 1076 to 1083—The court precedes the instruction with review of weather and road conditions:)Jurors. I am now going to discuss the liability of the City. I have told you and you have heard it several times, I think, between the summations and my instruction to you, that if you find that the only snowfall, the only snow that was on the ground was as a result of the snowfall on January 21st, that day's snowfall, the City is not liable.Now, I am not going to tell you why. I will just tell you that it is settled law. It takes into account a variety of factors that apply to the municipality's operation of the snow removal operations, and it entails notice provisions and time provisions and various other things.But for your information, if you find that the snow and ice on the roadway on West 73rd Street between Central Park West and Columbus Avenue was a result of only the snowfall on January 21st, the City is not liable and you will move onto the other questions.However, if you find that there was snow or ice on the roadway on West 73rd Street between Broadway and Columbus Avenue—excuse me.MR. SHAPEY: You said Broadway and Columbus.THE COURT: I am sorry. If you find that there was snow or ice on the roadway between Central Park West and Columbus Avenue before January 21st, then the City can be held liable.You will hear my instructions because plaintiff's case is that there was an accumulation of snow and ice and that the City was negligent in failing to remove it properly. But you will only reach, as I said twice before, you will only reach that point if you find as a fact that there was snow and ice on West 73rd Street between Central Park West and Columbus Avenue before January remaining on the day before the accident, that is, January 20th, so that snowfall on January 21st led to an accumulation.If you answer the question yes, then you will reach the issue of the City's negligence. I am going to give you an instruction on how to assess the City's negligence.Just because you find snow and ice, does not mean that you are going to find negligence. If you find snow and ice on the roadway prior to January 21st, then you will have to decide, yes, there was snow, yes, it was added to by the January 21st snowfall. Plaintiff claims that the City was negligent. The jury has to decide whether the City was negligent even if there was snow and ice accumulated.(Transcript pages 1079 to 1080—Here, the court reverts to version of the pattern instruction:)I instruct you that a municipality must use reasonable care to keep its streets and sidewalks reasonably clear of snow and ice.Have you noticed how much I use reasonable care? All the time, that's your test.In this case the plaintiff must establish that the condition of the roadway upon which the accident occurred, was so differently characterized than the usual condition in that street, on that street, at the time of plaintiff's accident as to constitute an unusual danger.(Transcript page 1080—The court recites pattern instruction regarding municipality's knowledge of condition and time to correct the condition.)(Transcript pages 1080 to 1081—The court recites details of the claim as part of pattern instruction:)In determining whether the defendant, the City of New York, was negligent, you will consider several factors. How much snowfall there was in the period before the January 21st snowfall, as well as on January 21st, the amount of snowfall on January 21st, when the snow stopped falling because that would give the City an opportunity to clean, how much snow fell during various storms, the total amount of snow on the street requiring removal, the temperature and condition of the weather during the time of the snowfall because in order to consider the City negligent, you would have already found that there was prior snowfall and prior snow and ice remaining on the street before January 21st.(Transcript pages 1081 to 1083—Starting with “The number of workers,” the instruction adheres closely to | Municipal Liability—Public Premises and Ways—Snow and Ice (Transcript pages 1076 to 1083—The court precedes the instruction with review of weather and road conditions:)Jurors. I am now going to discuss the liability of the City. I have told you and you have heard it several times, I think, between the summations and my instruction to you, that if you find that the only snowfall, the only snow that was on the ground was as a result of the snowfall on January 21st, that day's snowfall, the City is not liable.Now, I am not going to tell you why. I will just tell you that it is settled law. It takes into account a variety of factors that apply to the municipality's operation of the snow removal operations, and it entails notice provisions and time provisions and various other things.But for your information, if you find that the snow and ice on the roadway on West 73rd Street between Central Park West and Columbus Avenue was a result of only the snowfall on January 21st, the City is not liable and you will move onto the other questions.However, if you find that there was snow or ice on the roadway on West 73rd Street between Broadway and Columbus Avenue—excuse me.MR. SHAPEY: You said Broadway and Columbus.THE COURT: I am sorry. If you find that there was snow or ice on the roadway between Central Park West and Columbus Avenue before January 21st, then the City can be held liable.You will hear my instructions because plaintiff's case is that there was an accumulation of snow and ice and that the City was negligent in failing to remove it properly. But you will only reach, as I said twice before, you will only reach that point if you find as a fact that there was snow and ice on West 73rd Street between Central Park West and Columbus Avenue before January remaining on the day before the accident, that is, January 20th, so that snowfall on January 21st led to an accumulation.If you answer the question yes, then you will reach the issue of the City's negligence. I am going to give you an instruction on how to assess the City's negligence.Just because you find snow and ice, does not mean that you are going to find negligence. If you find snow and ice on the roadway prior to January 21st, then you will have to decide, yes, there was snow, yes, it was added to by the January 21st snowfall. Plaintiff claims that the City was negligent. The jury has to decide whether the City was negligent even if there was snow and ice accumulated.(Transcript pages 1079 to 1080—Here, the court reverts to version of the pattern instruction:)I instruct you that a municipality must use reasonable care to keep its streets and sidewalks reasonably clear of snow and ice.Have you noticed how much I use reasonable care? All the time, that's your test.In this case the plaintiff must establish that the condition of the roadway upon which the accident occurred, was so differently characterized than the usual condition in that street, on that street, at the time of plaintiff's accident as to constitute an unusual danger.(Transcript page 1080—The court recites pattern instruction regarding municipality's knowledge of condition and time to correct the condition.)(Transcript pages 1080 to 1081—The court recites details of the claim as part of pattern instruction:)In determining whether the defendant, the City of New York, was negligent, you will consider several factors. How much snowfall there was in the period before the January 21st snowfall, as well as on January 21st, the amount of snowfall on January 21st, when the snow stopped falling because that would give the City an opportunity to clean, how much snow fell during various storms, the total amount of snow on the street requiring removal, the temperature and condition of the weather during the time of the snowfall because in order to consider the City negligent, you would have already found that there was prior snowfall and prior snow and ice remaining on the street before January 21st.(Transcript pages 1081 to 1083—Starting with “The number of workers,” the instruction adheres closely to |
| PJI 2:225C |
| (formerly | (formerly |
| ). | PJI 2:225D). |
| However, in one instance where the instruction requires the municipality to take suitable precautions or give an adequate warning, the court substitutes “took suitable steps to correct it.”)(Transcript pages 1083 to 1084—In discussion of “substantial factor” in the last paragraph of the instruction, the court refers to the verdict sheet:)If you find that the City was negligent, it's a question on the verdict sheet, you don't have to remember it, they are all laid out, you will consider whether the City's negligence was a substantial factor in causing the plaintiff's injury.I repeat again, an act or failure to act is a substantial factor in bringing about an injury if a reasonable person would regard it as a cause of the injury.If you find that the City's negligence was not a substantial factor in causing the injury, then the plaintiff will not be able to recover against the City on this claim.If, however, you find that the City's negligence was a substantial factor in causing plaintiff's injury, you will proceed to consider next, as you see on the verdict sheet, comparative fault. That is whether or not the plaintiff was negligent. I have already discussed that, and I will not repeat | However, in one instance where the instruction requires the municipality to take suitable precautions or give an adequate warning, the court substitutes “took suitable steps to correct it.”)(Transcript pages 1083 to 1084—In discussion of “substantial factor” in the last paragraph of the instruction, the court refers to the verdict sheet:)If you find that the City was negligent, it's a question on the verdict sheet, you don't have to remember it, they are all laid out, you will consider whether the City's negligence was a substantial factor in causing the plaintiff's injury.I repeat again, an act or failure to act is a substantial factor in bringing about an injury if a reasonable person would regard it as a cause of the injury.If you find that the City's negligence was not a substantial factor in causing the injury, then the plaintiff will not be able to recover against the City on this claim.If, however, you find that the City's negligence was a substantial factor in causing plaintiff's injury, you will proceed to consider next, as you see on the verdict sheet, comparative fault. That is whether or not the plaintiff was negligent. I have already discussed that, and I will not repeat |
| it.26. . | it.26. PJI 1:24. |
| Return to Courtroom (Transcript page 1084—The court varies the instruction:)I should tell you that tomorrow when you retire for your deliberations, you can get any of these instructions read back. In case you are worried how are we going to remember all of this, it has taken the Judge an hour and she is not finished, it is legalese, you can ask for a read back and you can ask questions.So don't worry if you cannot remember everything. That holds true also for testimony. You will be able to have a read back of the | Return to Courtroom (Transcript page 1084—The court varies the instruction:)I should tell you that tomorrow when you retire for your deliberations, you can get any of these instructions read back. In case you are worried how are we going to remember all of this, it has taken the Judge an hour and she is not finished, it is legalese, you can ask for a read back and you can ask questions.So don't worry if you cannot remember everything. That holds true also for testimony. You will be able to have a read back of the |
| testimony.27. . | testimony.27. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering28. . | Suffering28. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page 1085—The court omits “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that she has suffered.” The court adds:)If you find that plaintiff, as a result of her injury suffered some loss of ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to plaintiff for pain and suffering to | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page 1085—The court omits “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that she has suffered.” The court adds:)If you find that plaintiff, as a result of her injury suffered some loss of ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to plaintiff for pain and suffering to |
| date.29. . | date.29. PJI 2:277. |
| Damages—General (Transcript pages 1085 to 1086—The court gives abbreviated version of instruction.)I do not know whether I told you the fact that I am reading, reaching the issues of damages, does not mean that you should find that there was negligence, that the plaintiff was entitled to damages. You will have to read instructions for all aspects of the case that you | Damages—General (Transcript pages 1085 to 1086—The court gives abbreviated version of instruction.)I do not know whether I told you the fact that I am reading, reaching the issues of damages, does not mean that you should find that there was negligence, that the plaintiff was entitled to damages. You will have to read instructions for all aspects of the case that you |
| decide.30. . | decide.30. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages 1086 to 1087—The court fills in the plaintiff's life expectancy:)Life expectancy, yes, life expectancy is 83.8 years. The statistical tables are nothing more than statistical averages. It neither guarantees that Mrs. Hoenig will live an additional 18.8 years or that she will not live for a longer | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages 1086 to 1087—The court fills in the plaintiff's life expectancy:)Life expectancy, yes, life expectancy is 83.8 years. The statistical tables are nothing more than statistical averages. It neither guarantees that Mrs. Hoenig will live an additional 18.8 years or that she will not live for a longer |
| period.31. . | period.31. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (Transcript pages 1087 to 1088—The court uses its own language:)If you find that these injuries are permanent and that she will need future medical, hospital, nursing, home-health aide and prosthetic devices in the future, you will include in your verdict sheet an amount for those anticipated medical, hospital to date expenses.If you find that she is entitled to be compensated for these future expenses, you will affix the dollar amount of these expenses over the entire period of what you consider to be her life expectancy or that you expect that she will live.Again, if you find these damages and you will include that amount, you will not break down the amount per year because it's a separate question as to how many years you want any future expenditures including pain and suffering to go. It asks for a number of years.* * *Furthermore, you must not make any reduction to present value. Just give a total award as you see it without any reduction for income taxes or reduction to present | Damages—Personal Injury—Expenses Incurred (Transcript pages 1087 to 1088—The court uses its own language:)If you find that these injuries are permanent and that she will need future medical, hospital, nursing, home-health aide and prosthetic devices in the future, you will include in your verdict sheet an amount for those anticipated medical, hospital to date expenses.If you find that she is entitled to be compensated for these future expenses, you will affix the dollar amount of these expenses over the entire period of what you consider to be her life expectancy or that you expect that she will live.Again, if you find these damages and you will include that amount, you will not break down the amount per year because it's a separate question as to how many years you want any future expenditures including pain and suffering to go. It asks for a number of years.* * *Furthermore, you must not make any reduction to present value. Just give a total award as you see it without any reduction for income taxes or reduction to present |
| value.32. . | value.32. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Regarding taxes)33. Additional information about the claim (Transcript page 1089)I wanted to emphasize that there is no claim against the City with respect to the lateness of the ambulance. You may take that lateness into account in figuring pain and suffering, but that is not a claim being made against the | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Regarding taxes)33. Additional information about the claim (Transcript page 1089)I wanted to emphasize that there is no claim against the City with respect to the lateness of the ambulance. You may take that lateness into account in figuring pain and suffering, but that is not a claim being made against the |
| City.34. . | City.34. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict35. . | Verdict35. PJI 1:97. |
| General Instruction—Special Verdicts (Transcript page 1091—The court uses its own language regarding the foreperson:)When five of you have agreed on any answer, the foreperson—it is generally juror number one. You can pick your own foreperson. The foreperson has no greater vote than anyone else. The foreperson, for the sake of this poor Judge, please, should have a nice handwriting.When five of the six of you agree on a verdict, we will ask that each of you sign, the people who agree on the verdict will sign. You will see lines for each of you to sign. The foreperson writes yes or no. Answer all the questions and you have reached a verdict.So tomorrow I will not see you in the morning.I don't know who is juror number one, but whoever it is, please have a good | General Instruction—Special Verdicts (Transcript page 1091—The court uses its own language regarding the foreperson:)When five of you have agreed on any answer, the foreperson—it is generally juror number one. You can pick your own foreperson. The foreperson has no greater vote than anyone else. The foreperson, for the sake of this poor Judge, please, should have a nice handwriting.When five of the six of you agree on a verdict, we will ask that each of you sign, the people who agree on the verdict will sign. You will see lines for each of you to sign. The foreperson writes yes or no. Answer all the questions and you have reached a verdict.So tomorrow I will not see you in the morning.I don't know who is juror number one, but whoever it is, please have a good |
| handwriting.36. . | handwriting.36. PJI 1:28. |
| Conclusion (Transcript page 109—The court varies instruction related to foreperson; the rest adheres closely to the pattern instruction:)Your first order of business is to pick a foreperson. The foreperson has only one vote just like anyone else.C. Case Documents Available on Westlaw1.Trial Motion, Memorandum and Affidavit (Affirmation), 1999 WL 33998897Jury Instruction, 1999 WL 33999435Verdict, Agreement and Settlement (Verdict Sheet), 1999 WL 33999426Verdict, Agreement and Settlement (Verdict Sheet), 1999 WL 33999427On appeal: Hoenig v. Shyed, 284 A.D.2d 225, 727 N.Y.S.2d 80 (1st Dep't 2001)2.Sample Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligen!”D. Research References1.Key | Conclusion (Transcript page 109—The court varies instruction related to foreperson; the rest adheres closely to the pattern instruction:)Your first order of business is to pick a foreperson. The foreperson has only one vote just like anyone else.C. Case Documents Available on Westlaw1.Trial Motion, Memorandum and Affidavit (Affirmation), 1999 WL 33998897Jury Instruction, 1999 WL 33999435Verdict, Agreement and Settlement (Verdict Sheet), 1999 WL 33999426Verdict, Agreement and Settlement (Verdict Sheet), 1999 WL 33999427On appeal: Hoenig v. Shyed, 284 A.D.2d 225, 727 N.Y.S.2d 80 (1st Dep't 2001)2.Sample Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligen!”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:6 Motor | 4:48, 7:209, 7:209A§ 4:6 Motor |
| vehicle negligence/Personal injury: herniated disc, loss of services/Two plaintiffs, one defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Herniated disc; loss of services of spouseCase Name: Tracy A. Czubaj, Plaintiff, v. Sherry Berner, Defendant, v. Robert D. Czubaj, Third Party Defendant.Court: Supreme Court of New York, Erie CountyJudge: Kevin M. DillonDocket Number: 5125/2002Verdict Date: July 26, 2005Outcome: Award of $0, based on verdict finding that defendant was not negligent.Brief Summary of Facts: The plaintiff suffered a herniated disc when the vehicle in which she was a passenger was struck broadside by the defendant's vehicle as the plaintiff's host driver attempted to turn left at a controlled intersection. The plaintiff contended that the defendant operated her vehicle in a negligent manner, failed to yield the right-of-way, failed to keep a proper lookout and drove at an excessive rate of speed. The defendant denied liability, disputed the extent of the plaintiff's injuries and contended that the plaintiff's host driver was negligent, failed to yield the right-of way and turned left in front of her oncoming vehicle that had a green traffic light. The plaintiff's spouse filed a claim for loss of services, but received no award.B. Jury Instructions Proposed By | vehicle negligence/Personal injury: herniated disc, loss of services/Two plaintiffs, one defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Herniated disc; loss of services of spouseCase Name: Tracy A. Czubaj, Plaintiff, v. Sherry Berner, Defendant, v. Robert D. Czubaj, Third Party Defendant.Court: Supreme Court of New York, Erie CountyJudge: Kevin M. DillonDocket Number: 5125/2002Verdict Date: July 26, 2005Outcome: Award of $0, based on verdict finding that defendant was not negligent.Brief Summary of Facts: The plaintiff suffered a herniated disc when the vehicle in which she was a passenger was struck broadside by the defendant's vehicle as the plaintiff's host driver attempted to turn left at a controlled intersection. The plaintiff contended that the defendant operated her vehicle in a negligent manner, failed to yield the right-of-way, failed to keep a proper lookout and drove at an excessive rate of speed. The defendant denied liability, disputed the extent of the plaintiff's injuries and contended that the plaintiff's host driver was negligent, failed to yield the right-of way and turned left in front of her oncoming vehicle that had a green traffic light. The plaintiff's spouse filed a claim for loss of services, but received no award.B. Jury Instructions Proposed By |
| Plaintiff1. . Introduction2. . | Plaintiff1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principal | Review Principal |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden Of | Burden Of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:25A. |
| Juror's Use of Professional | Juror's Use of Professional |
| Expertise8. . | Expertise8. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict9. . | Verdict9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy10. . Conclusion11. . | Sympathy10. PJI 1:28. Conclusion11. PJI 1:29. |
| Alternate | Alternate |
| Jurors12. . | Jurors12. PJI 1:35A. |
| Split | Split |
| Trial-Liability13. . Impartiality14. . | Trial-Liability13. PJI 1:36. Impartiality14. PJI 1:37. |
| Jury | Jury |
| Function15. . | Function15. PJI 1:38. |
| Court's | Court's |
| Function16. . | Function16. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings17. . | Rulings17. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence18. . | Evidence18. PJI 1:41. |
| Weighing | Weighing |
| Testimony19. . | Testimony19. PJI 1:70. |
| General Instructions—Circumstantial | General Instructions—Circumstantial |
| Evidence20. . | Evidence20. PJI 1:91. |
| General Instructions—Interested | General Instructions—Interested |
| Witness—Generally21. . | Witness—Generally21. PJI 1:94. |
| General Instruction—Use of Pre-Trial Deposition Upon | General Instruction—Use of Pre-Trial Deposition Upon |
| Trial22. . | Trial22. PJI 1:97. |
| General Instruction—Special | General Instruction—Special |
| Verdicts23. . | Verdicts23. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally24. . | Defined—Generally24. PJI 2:26. |
| Statutory Standard of Care—Vehicle & Traffic Law Violation (Modified to add appropriate section number and text of Vehicle and Traffic Law)Plaintiff, TRACY A. CZUBAJ, claims that the Defendant, SHERRY A. BERNER, failed to comply with Section 1180(a) of the Vehicle & Traffic Law. This Section provides as follows: No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then | Statutory Standard of Care—Vehicle & Traffic Law Violation (Modified to add appropriate section number and text of Vehicle and Traffic Law)Plaintiff, TRACY A. CZUBAJ, claims that the Defendant, SHERRY A. BERNER, failed to comply with Section 1180(a) of the Vehicle & Traffic Law. This Section provides as follows: No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then |
| existing.25. . | existing.25. PJI 2:77. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, in | Motor Vehicle Accidents—Duty Toward Other Motorists, in |
| General26. . | General26. PJI 2:77.1. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental Instruction] (modified, adding specifics:)A Driver is charged with the duty to see that which under the facts and circumstances she should have seen by the proper use of her senses, and if you find that the Defendant, SHERRY A. BERNER, did not observe that which was there to be seen you may find that she was negligent in failing to look or in not looking | Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental Instruction] (modified, adding specifics:)A Driver is charged with the duty to see that which under the facts and circumstances she should have seen by the proper use of her senses, and if you find that the Defendant, SHERRY A. BERNER, did not observe that which was there to be seen you may find that she was negligent in failing to look or in not looking |
| carefully.27. . | carefully.27. PJI 2:79. |
| Motor Vehicle Accidents—Collision at Intersection Controlled by Traffic Control Signal (Modified, adding specific circumstances, omitting “The driver who has a green light has the right to assume that the light is red for cross traffic and that other drivers will stop for the red light.”)ROBERT D. CZUBAJ claims that when he started his left turn, the light was yellow. Defendant, SHERRY A. BERNER, claims that the light was green when she entered the intersection. A green light is an invitation to proceed. However, a driver who has a green light must still use reasonable care under the circumstances. Thus, if the driver saw or should have seen another vehicle in the intersection or so near the intersection that a collision was likely to occur, the driver was required to use reasonable care to avoid the collision.C. Case Documents Available on Westlaw1.Jury Instruction, 2005 WL 3995707Trial Motion, Memorandum and Affidavit, 2005 WL 3996216Trial Pleading, 2002 WL 33029410Verdict, Agreement and Settlement, 2005 WL 3995756Jury Verdict and Settlement Summary, | Motor Vehicle Accidents—Collision at Intersection Controlled by Traffic Control Signal (Modified, adding specific circumstances, omitting “The driver who has a green light has the right to assume that the light is red for cross traffic and that other drivers will stop for the red light.”)ROBERT D. CZUBAJ claims that when he started his left turn, the light was yellow. Defendant, SHERRY A. BERNER, claims that the light was green when she entered the intersection. A green light is an invitation to proceed. However, a driver who has a green light must still use reasonable care under the circumstances. Thus, if the driver saw or should have seen another vehicle in the intersection or so near the intersection that a collision was likely to occur, the driver was required to use reasonable care to avoid the collision.C. Case Documents Available on Westlaw1.Jury Instruction, 2005 WL 3995707Trial Motion, Memorandum and Affidavit, 2005 WL 3996216Trial Pleading, 2002 WL 33029410Verdict, Agreement and Settlement, 2005 WL 3995756Jury Verdict and Settlement Summary, |
| 2.Sample | 2005 WL 41726012.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle accidents”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle accidents”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:7 Motor | 4:48, 7:209, 7:209A§ 4:7 Motor |
| vehicle negligence/Personal injury: reflex sympathetic dystrophy syndrome (RSD)/One plaintiff, one defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Soft tissue ankle sprain allegedly develops into Reflex Sympathetic Dystrophy Syndrome (RSD)Case Name: Bridget Madl, Plaintiff, v. Carrie Mckay, DefendantCourt: Supreme Court of New York, Erie CountyJudge: John P. LaneDocket Number: 3458/01Verdict Date: July 25, 2003Outcome: Award of $0; defendant's verdict on no-fault threshold.Brief Summary of Facts: The issue of negligence was conceded in this case in which the plaintiff driver was struck in the rear by the defendant driver. The plaintiff, age 27 at the time, contended that the impact damage was extensive. The plaintiff contended that she sustained a severe ankle sprain, and that, based upon symptoms including continuing severe burning pain, she developed RSD, which will remain permanently. The defendant denied that objective evidence, such as color or temperature changes were present and denied that the accident caused RSD.B. Jury Instructions1. Jury Instructions Proposed By | vehicle negligence/Personal injury: reflex sympathetic dystrophy syndrome (RSD)/One plaintiff, one defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Soft tissue ankle sprain allegedly develops into Reflex Sympathetic Dystrophy Syndrome (RSD)Case Name: Bridget Madl, Plaintiff, v. Carrie Mckay, DefendantCourt: Supreme Court of New York, Erie CountyJudge: John P. LaneDocket Number: 3458/01Verdict Date: July 25, 2003Outcome: Award of $0; defendant's verdict on no-fault threshold.Brief Summary of Facts: The issue of negligence was conceded in this case in which the plaintiff driver was struck in the rear by the defendant driver. The plaintiff, age 27 at the time, contended that the impact damage was extensive. The plaintiff contended that she sustained a severe ankle sprain, and that, based upon symptoms including continuing severe burning pain, she developed RSD, which will remain permanently. The defendant denied that objective evidence, such as color or temperature changes were present and denied that the accident caused RSD.B. Jury Instructions1. Jury Instructions Proposed By |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . | Sympathy9. PJI 1:29. |
| Alternate | Alternate |
| Jurors10. . | Jurors10. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence11. . | Evidence11. PJI 1:41. |
| Weighing | Weighing |
| Testimony12. . | Testimony12. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different | General Instruction—Burden of Proof—When Burden Differs on Different |
| Issues13. . | Issues13. PJI 1:75. |
| Missing Witness | Missing Witness |
| Charge14. . | Charge14. PJI 1:78. |
| Stipulation of | Stipulation of |
| Facts15. . | Facts15. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness16. . | Witness16. PJI 1:91. |
| General Instruction—Interested Witness—(Plaintiff | General Instruction—Interested Witness—(Plaintiff |
| only)17. . | only)17. PJI 1:94. |
| General Instruction—Use of Pre-Trial Deposition Upon | General Instruction—Use of Pre-Trial Deposition Upon |
| Trial18. . | Trial18. PJI 1:97. |
| General Instruction—Special | General Instruction—Special |
| Verdicts19. . | Verdicts19. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General20. . | General20. PJI 2:88G. |
| Non-Permanent Medically Determined Injury That Prevents Performance of Usual and Customary Daily Activities for 90 of 180 Days Immediately Subsequent to Injury & Customary Daily2. Jury Instructions Proposed by | Non-Permanent Medically Determined Injury That Prevents Performance of Usual and Customary Daily Activities for 90 of 180 Days Immediately Subsequent to Injury & Customary Daily2. Jury Instructions Proposed by |
| Plaintiff1. . Introduction2. . Parties3. . | Plaintiff1. PJI 1:1. Introduction2. PJI 1:2. Parties3. PJI 1:3. |
| Openings and | Openings and |
| evidence4. . | evidence4. PJI 1:4. |
| Objections, Motions, | Objections, Motions, |
| Exceptions5. . Summations6. . | Exceptions5. PJI 1:5. Summations6. PJI 1:6. |
| Function of the Court and | Function of the Court and |
| Jury7. . | Jury7. PJI 1:7. |
| Consider only Competent | Consider only Competent |
| Evidence8. . | Evidence8. PJI 1:8. |
| Weighing | Weighing |
| Testimony9. . | Testimony9. PJI 1:9. |
| Conduct During | Conduct During |
| Recess10. . | Recess10. PJI 1:10. |
| Do Not Visit | Do Not Visit |
| Scene11. . | Scene11. PJI 1:11. |
| Discussion With Others—Independent | Discussion With Others—Independent |
| Research12. . | Research12. PJI 1:12. |
| Discussion By | Discussion By |
| Others13. . | Others13. PJI 1:13. |
| Conversation With Parties or | Conversation With Parties or |
| Attorneys14. . | Attorneys14. PJI 1:13A. |
| Alternate | Alternate |
| Jurors15. . Conclusion16. . | Jurors15. PJI 1:14. Conclusion16. PJI 2:10. |
| Negligence | Negligence |
| Defined—Generally17. . | Defined—Generally17. PJI 2:70. |
| Proximate | Proximate |
| Cause18. . Damages—General19. . | Cause18. PJI 2:277. Damages—General19. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering20. . | Suffering20. PJI 2:280.1. |
| Damages—Personal Injury—Injury and pain and Suffering [Supplemental | Damages—Personal Injury—Injury and pain and Suffering [Supplemental |
| Instruction]21. . | Instruction]21. PJI 1:103. |
| Note-Taking by | Note-Taking by |
| Jurors22. . | Jurors22. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined | Common Law Standard of Care—Negligence Defined |
| Generally23. . | Generally23. PJI 2:25. |
| Statutory Standard of Care—Statute of General application—V&T | Statutory Standard of Care—Statute of General application—V&T |
| 1180(a)24. . | 1180(a)24. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation—V&T | Statutory Standard of Care—Vehicle and Traffic Law Violation—V&T |
| 1180(a)25. . | 1180(a)25. PJI 2:77. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, In | Motor Vehicle Accidents—Duty Toward Other Motorists, In |
| General26. . | General26. PJI 2:77.1. |
| Motor Vehicle Accidents—Duty Toward Other Motorists, In General [Supplemental | Motor Vehicle Accidents—Duty Toward Other Motorists, In General [Supplemental |
| Instruction]27. . | Instruction]27. PJI 2:82. |
| Motor Vehicle Accidents—Close | Motor Vehicle Accidents—Close |
| Following28. . | Following28. PJI 2:88F. |
| No Fault Law—Threshold—Permanent—Consequential Limitation of the Use of Body Organ or | No Fault Law—Threshold—Permanent—Consequential Limitation of the Use of Body Organ or |
| Member29. . | Member29. PJI 2:88G. |
| No Fault Law—Threshold—Non-Permanent Medically Determined Injury that Prevents Performance of Usual and Customary Daily Activities for 90 of 180 days Immediately Subsequent to | No Fault Law—Threshold—Non-Permanent Medically Determined Injury that Prevents Performance of Usual and Customary Daily Activities for 90 of 180 days Immediately Subsequent to |
| Injury30. . Introduction31. . | Injury30. PJI 1:20. Introduction31. PJI 1:21. |
| Review Principles | Review Principles |
| Stated32. . | Stated32. PJI 1:22. |
| Falsus in | Falsus in |
| Uno33. . | Uno33. PJI 1:23. |
| Burden of | Burden of |
| Proof34. . | Proof34. PJI 1:24. |
| Return to | Return to |
| Courtroom35. . | Courtroom35. PJI 1:25. |
| Consider only Testimony and | Consider only Testimony and |
| Exhibits36. . | Exhibits36. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict37. . | Verdict37. PJI 1:27. |
| Exclude | Exclude |
| Sympathy38. . Conclusion39. . | Sympathy38. PJI 1:28. Conclusion39. PJI 1:97. |
| Special VerdictC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 23169690Trial Pleading, 2001 WL 34834239Jury Instruction (Defendant's Request to Charge), 2003 WL 24192074Verdict, Agreement and Settlement (Verdict Sheet), 2003 WL 24192085Verdict, Agreement and Settlement (Stipulation of Binding Summary Jury Trial), | Special VerdictC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 23169690Trial Pleading, 2001 WL 34834239Jury Instruction (Defendant's Request to Charge), 2003 WL 24192074Verdict, Agreement and Settlement (Verdict Sheet), 2003 WL 24192085Verdict, Agreement and Settlement (Stipulation of Binding Summary Jury Trial), |
| 2.Sample | 2003 WL 241920862.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle accidents”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle accidents”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:8 Motor | 4:48, 7:209, 7:209A§ 4:8 Motor |
| vehicle negligence/Personal injury: two cervical herniated discs and one lumbar herniated disc/One plaintiff, defendants consisting of town and an individual, presumably the truck driverA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Two cervical herniated discs and one lumbar herniated discCase Name: Hazel Woods Newson, Plaintiff, v. Incorporated Village of Hempstead, Herbert R. Jones, DefendantsCourt: Supreme Court of New York, Nassau CountyJudge: Daniel MartinDocket Number: 17944/2003Verdict Date: May 24, 2004Outcome: $220,000 verdictBrief Summary of Facts: The plaintiff, a 57-year-old female, was driving her Lincoln automobile with her grandchild as a passenger. The plaintiff had slowed her vehicle and was about to make a right hand turn when her vehicle was struck by the defendant garbage truck that had pulled out from the curb, moving from the parking lane into the traffic lane. The impact caused the Lincoln to be pushed to the opposite lane of traffic. The plaintiff sued the Village of Hempstead which owned and operated the garbage truck.The plaintiff alleged that the driver of the garbage truck had negligently pulled away from the curb without signaling and without looking out for vehicular traffic.The defendant argued that the garbage truck driver had the right to proceed and to use the parking lane as a driving lane.It also disputed the plaintiff's allegation that the collision caused her to sustain two herniated discs in her neck and one herniated disc in her lower back. The defendant argued that the truck had been only traveling at one mile per hour, therefore, the impact could not have been great enough to cause such extensive injuries. The plaintiff established that the collision caused the steel bumper of the truck to be bent out of shape.The plaintiff's treating orthopedic surgeon testified that MRIs revealed the herniations and that these injuries were caused by the accident. He opined that herniated discs are not caused by preexisting arthritis, but by trauma. The defendant's expert physician, a family medicine practitioner, testified that he found no evidence of herniations on the MRIs.B. Jury Instructions Proposed by | vehicle negligence/Personal injury: two cervical herniated discs and one lumbar herniated disc/One plaintiff, defendants consisting of town and an individual, presumably the truck driverA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Two cervical herniated discs and one lumbar herniated discCase Name: Hazel Woods Newson, Plaintiff, v. Incorporated Village of Hempstead, Herbert R. Jones, DefendantsCourt: Supreme Court of New York, Nassau CountyJudge: Daniel MartinDocket Number: 17944/2003Verdict Date: May 24, 2004Outcome: $220,000 verdictBrief Summary of Facts: The plaintiff, a 57-year-old female, was driving her Lincoln automobile with her grandchild as a passenger. The plaintiff had slowed her vehicle and was about to make a right hand turn when her vehicle was struck by the defendant garbage truck that had pulled out from the curb, moving from the parking lane into the traffic lane. The impact caused the Lincoln to be pushed to the opposite lane of traffic. The plaintiff sued the Village of Hempstead which owned and operated the garbage truck.The plaintiff alleged that the driver of the garbage truck had negligently pulled away from the curb without signaling and without looking out for vehicular traffic.The defendant argued that the garbage truck driver had the right to proceed and to use the parking lane as a driving lane.It also disputed the plaintiff's allegation that the collision caused her to sustain two herniated discs in her neck and one herniated disc in her lower back. The defendant argued that the truck had been only traveling at one mile per hour, therefore, the impact could not have been great enough to cause such extensive injuries. The plaintiff established that the collision caused the steel bumper of the truck to be bent out of shape.The plaintiff's treating orthopedic surgeon testified that MRIs revealed the herniations and that these injuries were caused by the accident. He opined that herniated discs are not caused by preexisting arthritis, but by trauma. The defendant's expert physician, a family medicine practitioner, testified that he found no evidence of herniations on the MRIs.B. Jury Instructions Proposed by |
| Defendant1. . | Defendant1. PJI 2:26. |
| Standard of Care—Vehicle and Traffic Law Violation (specifying:)(Violation of | Standard of Care—Vehicle and Traffic Law Violation (specifying:)(Violation of |
| NY VTL 1160 |
| & | & |
| )2. . | 1163(a))2. PJI 2:75. |
| Motor Vehicle Accidents (this instruction pertains to Pedestrians Crossing | Motor Vehicle Accidents (this instruction pertains to Pedestrians Crossing |
| Highway)3. . | Highway)3. PJI 2:77. |
| Motorist Duty Toward Other Motorists, In | Motorist Duty Toward Other Motorists, In |
| General4. . | General4. PJI 2:36. |
| Comparative Negligence (instruction is actually entitled “Comparative | Comparative Negligence (instruction is actually entitled “Comparative |
| Fault”)5. . | Fault”)5. PJI 2:70. |
| Proximate Cause—In GeneralC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, | Proximate Cause—In GeneralC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, |
| ,Jury | 2004 WL 3224004,Jury |
| Instruction (Defendant's Request for Jury Charge), 2004 WL 3699799Trial Pleading (Verified Answer), | Instruction (Defendant's Request for Jury Charge), 2004 WL 3699799Trial Pleading (Verified Answer), |
| 2002 WL 32982732 |
| (earlier proceeding in Queens County)2.Sample Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle”D. Research References1.Key | (earlier proceeding in Queens County)2.Sample Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:9 Motor | 4:48, 7:209, 7:209A§ 4:9 Motor |
| vehicle and utility company negligence/Personal injury: compression fracture and herniated disc/Two plaintiffs; two corporate defendants, one government defendant, two individual defendantsA. BackgroundType of Case: Motor Vehicle Negligence; Utility Company NegligenceType of Injury: Compression fracture and a herniated discCase Name: Cathy Hallivis and Maurice Hallivis, Plaintiffs, v. Consolidated Edison Company of New York, Inc. New York Steam Corporation, the City of New York, Ndiaye Mamadoa and Arkady Eppel, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Ira GammermanDocket Number: 101872/98Verdict Date: May 2003Outcome: $9,500,000 verdict, liability apportioned 25 percent to utility company and 75 percent to cabdriverBrief Summary of Facts: A 33-year-old female suffered a compression fracture and a herniated disc when she was struck by a taxicab, operated by the third-named male defendant, while it traveled through vapor coming out of the co-defendant city's catch basin which was leaking from an underground line, maintained by the defendant, as she was crossing a city street. The plaintiff contended that the defendant failed to properly maintain its utility lines, that its defective lines permitted a large release of steam which blocked the driver's view, that it was aware of the dangers of the leaking line for more than one year and that it failed to repair the leak until after the occurrence of this incident. The plaintiff further contended that the third-named defendant operated the taxicab in a negligent manner and failed to take evasive action to avoid the incident. The defendants denied liability. The defendant contended that the third-named defendant taxicab driver negligently operated his vehicle and that the vapor condition did not obstruct his vision. The defendant further contended that the third-named defendant initially admitted the vapor did not obstruct his vision but later changed his testimony. Liability was attributed at 25 percent to the defendant utility company and 75 percent to the third-named defendant taxicab driver. A defense verdict was returned for the co-defendant city.B. Jury Instructions Proposed by | vehicle and utility company negligence/Personal injury: compression fracture and herniated disc/Two plaintiffs; two corporate defendants, one government defendant, two individual defendantsA. BackgroundType of Case: Motor Vehicle Negligence; Utility Company NegligenceType of Injury: Compression fracture and a herniated discCase Name: Cathy Hallivis and Maurice Hallivis, Plaintiffs, v. Consolidated Edison Company of New York, Inc. New York Steam Corporation, the City of New York, Ndiaye Mamadoa and Arkady Eppel, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Ira GammermanDocket Number: 101872/98Verdict Date: May 2003Outcome: $9,500,000 verdict, liability apportioned 25 percent to utility company and 75 percent to cabdriverBrief Summary of Facts: A 33-year-old female suffered a compression fracture and a herniated disc when she was struck by a taxicab, operated by the third-named male defendant, while it traveled through vapor coming out of the co-defendant city's catch basin which was leaking from an underground line, maintained by the defendant, as she was crossing a city street. The plaintiff contended that the defendant failed to properly maintain its utility lines, that its defective lines permitted a large release of steam which blocked the driver's view, that it was aware of the dangers of the leaking line for more than one year and that it failed to repair the leak until after the occurrence of this incident. The plaintiff further contended that the third-named defendant operated the taxicab in a negligent manner and failed to take evasive action to avoid the incident. The defendants denied liability. The defendant contended that the third-named defendant taxicab driver negligently operated his vehicle and that the vapor condition did not obstruct his vision. The defendant further contended that the third-named defendant initially admitted the vapor did not obstruct his vision but later changed his testimony. Liability was attributed at 25 percent to the defendant utility company and 75 percent to the third-named defendant taxicab driver. A defense verdict was returned for the co-defendant city.B. Jury Instructions Proposed by |
| Plaintiff1. . Introduction2. . | Plaintiff1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . Conclusion10. . Introduction11. . Impartiality12. . | Sympathy9. PJI 1:28. Conclusion10. PJI 1:35. Introduction11. PJI 1:36. Impartiality12. PJI 1:37. |
| Jury | Jury |
| Function13. . | Function13. PJI 1:38. |
| Court's | Court's |
| Function14. . | Function14. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings15. . | Rulings15. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence16. . | Evidence16. PJI 1:41. |
| Weighing | Weighing |
| Testimony17. . | Testimony17. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different | General Instruction—Burden of Proof—When Burden Differs on Different |
| Issues18. . | Issues18. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally19. . | Witness—Generally19. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally20. . | Defined—Generally20. PJI 2:12. |
| Common Law Standard of | Common Law Standard of |
| Care—Foreseeability—Generally21. . | Care—Foreseeability—Generally21. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General22. . | General22. PJI 2:77. |
| Duty Toward Other Motorists, in | Duty Toward Other Motorists, in |
| General23. . | General23. PJI 2:77.1. |
| Proper | Proper |
| Lookout24. . | Lookout24. PJI 2:205. |
| Public Utilities—Electric Companies—Maintenance (the pattern instruction deals with “Fallen, Hanging or Sagging Lines.” Plaintiff modifies it:)An electric power company must use reasonable care to prevent steam leaks. Where a steam leak occurs so as to be dangerous to persons reasonably to be anticipated in the area, whether or not such condition was caused by the fault of the company, an electric power company has the duty to repair the condition, as safety requires, within a reasonable time after it knows or in the use of reasonable care should have known of the dangerous condition and had an opportunity to correct the cause of danger.Author's Comment: Whether an electric power company has a duty to use reasonable care to prevent steam leaks and then to repair leaks within a reasonable time is a question of law; the best practice would be to submit the proposed modification with accompanying case authority (in this case, see, e.g., Wynn v. Parisi, 24 Misc.2d 933, 204 N.Y.S.2d 443 (N.Y. Co., | Public Utilities—Electric Companies—Maintenance (the pattern instruction deals with “Fallen, Hanging or Sagging Lines.” Plaintiff modifies it:)An electric power company must use reasonable care to prevent steam leaks. Where a steam leak occurs so as to be dangerous to persons reasonably to be anticipated in the area, whether or not such condition was caused by the fault of the company, an electric power company has the duty to repair the condition, as safety requires, within a reasonable time after it knows or in the use of reasonable care should have known of the dangerous condition and had an opportunity to correct the cause of danger.Author's Comment: Whether an electric power company has a duty to use reasonable care to prevent steam leaks and then to repair leaks within a reasonable time is a question of law; the best practice would be to submit the proposed modification with accompanying case authority (in this case, see, e.g., Wynn v. Parisi, 24 Misc.2d 933, 204 N.Y.S.2d 443 (N.Y. Co., |
| 1960).25. . | 1960).25. PJI 2:225. |
| State or Municipal Liability—Public Premises and Ways [—No Prior Written Notice | State or Municipal Liability—Public Premises and Ways [—No Prior Written Notice |
| Requirement]26. . Damages—General27. . | Requirement]26. PJI 2:277. Damages—General27. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering28. . | Suffering28. PJI 2:280.1. |
| Damages—Pain and Suffering—to include the impact the injuries may have on plaintiff's ability to enjoy | Damages—Pain and Suffering—to include the impact the injuries may have on plaintiff's ability to enjoy |
| life.29. . | life.29. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Plaintiff adds:)(47.6 years)Author's Comment: Although NY PJI contains actual life expectancy tables, see 1B NY PJI3d, at 1017 to 1035 (2018), counsel should always obtain the most current information available. Recent National Vital Statistics Reports are available at the website of the Center for Disease Control, National Center for Health Statistics, | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Plaintiff adds:)(47.6 years)Author's Comment: Although NY PJI contains actual life expectancy tables, see 1B NY PJI3d, at 1017 to 1035 (2018), counsel should always obtain the most current information available. Recent National Vital Statistics Reports are available at the website of the Center for Disease Control, National Center for Health Statistics, |
| http://www.cdc.gov/nchs30. . | http://www.cdc.gov/nchs30. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (Plaintiff adds:)(Second half of the charge only, regarding future medical expenses)(It is not clear what the plaintiff means by “second half,” but presumably it means the part starting with: “If you find that AB will need medical, hospital or nursing expenses in the | Damages—Personal Injury—Expenses Incurred (Plaintiff adds:)(Second half of the charge only, regarding future medical expenses)(It is not clear what the plaintiff means by “second half,” but presumably it means the part starting with: “If you find that AB will need medical, hospital or nursing expenses in the |
| future. . ..)31. . | future. . ..)31. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In | Damages—Personal Injury—Loss of Earnings—In |
| General32. . | General32. PJI 2:301. |
| Damages—Personal Injury—Collateral Sources—Itemized Verdict (Plaintiff adds:)(In making this computation the jury must be instructed to award the full amount of future damage without reduction to present value, CPLR § 4111[e] (formerly CPLR § 4111[f]))C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 23316065Trial Filing (Notice of Appeal), 2005 WL 2573412Trial Filing (Pre-Argument Statement), 2005 WL 2573413Trial Pleading (Answer), 2005 WL 2573406Trial Deposition and Discovery (Medical Exchange), 2003 WL 24173347Trial Deposition and Discovery (Medical Exchange), 2003 WL 24173346Trial Deposition and Discovery (Medical Exchange), 2002 WL 32902312Trial Pleading (Affirmation in Opposition), 1999 WL 33962891Trial Pleading (Verified Answer & Cross Claim with Demand for Bill of Particulars), 1998 WL 34350791Trial Pleading (Verified Complaint), 1998 WL 34350790Verdict, Agreement and Settlement (Questions for the Jury), 1998 WL 34350805Jury Instruction (Plaintiff's Request to Charge), 2003 WL 241733432.Sample Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle”D. Research References1.Key | Damages—Personal Injury—Collateral Sources—Itemized Verdict (Plaintiff adds:)(In making this computation the jury must be instructed to award the full amount of future damage without reduction to present value, CPLR § 4111[e] (formerly CPLR § 4111[f]))C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 23316065Trial Filing (Notice of Appeal), 2005 WL 2573412Trial Filing (Pre-Argument Statement), 2005 WL 2573413Trial Pleading (Answer), 2005 WL 2573406Trial Deposition and Discovery (Medical Exchange), 2003 WL 24173347Trial Deposition and Discovery (Medical Exchange), 2003 WL 24173346Trial Deposition and Discovery (Medical Exchange), 2002 WL 32902312Trial Pleading (Affirmation in Opposition), 1999 WL 33962891Trial Pleading (Verified Answer & Cross Claim with Demand for Bill of Particulars), 1998 WL 34350791Trial Pleading (Verified Complaint), 1998 WL 34350790Verdict, Agreement and Settlement (Questions for the Jury), 1998 WL 34350805Jury Instruction (Plaintiff's Request to Charge), 2003 WL 241733432.Sample Westlaw Query For Trial Court Documents in Similar Cases:“motor vehicle”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:10 Motor | 4:48, 7:209, 7:209A§ 4:10 Motor |
| vehicle negligence/Personal injury: herniated disc, complicated by MS/Two plaintiffs; one individual and one governmental defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Herniated discs in neck and back; diagnosis of multiple sclerosis complicates issueCase Name: Anthony Nardozzi and Susan Nardozzi, Plaintiffs, v. Edward L. Piotrowski and Erie County Water AuthorityCourt: Supreme Court of New York, Erie CountyJudge: Patrick NemoyerDocket Number: 006262/1995Verdict Date: March 20, 2003Outcome: $700,000 verdict; liability apportioned 65% to plaintiff and 35% to defendantBrief Summary of Facts: The male plaintiff in this case contended that the defendant driver negligently violated a red light at the intersection of Union Road and French Road in Cheektowaga, N.Y., causing an accident with the plaintiff's vehicle wherein the plaintiff struck a trailer behind the defendant's vehicle, causing the plaintiff to suffer neck and back injuries. The plaintiff filed suit for liability against the defendant. The defendant maintained that his light was yellow as he was proceeding through the intersection and contended that the plaintiff should have waited for the defendant to clear the intersection before proceeding. Furthermore, the defendant claimed that the plaintiff's neck and back symptoms were caused by multiple sclerosis and were not related to the accident.The plaintiff maintained that he was waiting at a red light at the intersection of Union and French Roads intending to make a right turn onto Union Road. The plaintiff testified that when the light turned green, he proceeded to make his turn. The plaintiff alleged that the defendant was traveling northbound on Union Road and ran the red light, whereupon the plaintiff struck the trailer being towed by the defendant's vehicle.The plaintiff related that he received emergency room treatment for neck and back pain, and maintained that he was treated several times after the accident for neck and back pain. Prior to the accident, the plaintiff had some symptoms of multiple sclerosis, and following the accident, he was treated for seven years for symptoms believed to be related to the multiple sclerosis. In 2001, the plaintiff had an MRI study done which indicated that he had herniated discs caused by trauma, not the underlying multiple sclerosis. The plaintiff subsequently underwent a framinotomy to relieve the symptoms of his herniated discs. The plaintiff continues to suffer from residual pain.The defendant alleged that the plaintiff had shown symptoms of multiple sclerosis prior to the accident and maintained that his ongoing medical issues were also related to the multiple sclerosis.Though the defendant was charged with a motor vehicle violation stemming from the accident, he only pled guilty to a parking ticket.B. Jury Instructions Proposed by | vehicle negligence/Personal injury: herniated disc, complicated by MS/Two plaintiffs; one individual and one governmental defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Herniated discs in neck and back; diagnosis of multiple sclerosis complicates issueCase Name: Anthony Nardozzi and Susan Nardozzi, Plaintiffs, v. Edward L. Piotrowski and Erie County Water AuthorityCourt: Supreme Court of New York, Erie CountyJudge: Patrick NemoyerDocket Number: 006262/1995Verdict Date: March 20, 2003Outcome: $700,000 verdict; liability apportioned 65% to plaintiff and 35% to defendantBrief Summary of Facts: The male plaintiff in this case contended that the defendant driver negligently violated a red light at the intersection of Union Road and French Road in Cheektowaga, N.Y., causing an accident with the plaintiff's vehicle wherein the plaintiff struck a trailer behind the defendant's vehicle, causing the plaintiff to suffer neck and back injuries. The plaintiff filed suit for liability against the defendant. The defendant maintained that his light was yellow as he was proceeding through the intersection and contended that the plaintiff should have waited for the defendant to clear the intersection before proceeding. Furthermore, the defendant claimed that the plaintiff's neck and back symptoms were caused by multiple sclerosis and were not related to the accident.The plaintiff maintained that he was waiting at a red light at the intersection of Union and French Roads intending to make a right turn onto Union Road. The plaintiff testified that when the light turned green, he proceeded to make his turn. The plaintiff alleged that the defendant was traveling northbound on Union Road and ran the red light, whereupon the plaintiff struck the trailer being towed by the defendant's vehicle.The plaintiff related that he received emergency room treatment for neck and back pain, and maintained that he was treated several times after the accident for neck and back pain. Prior to the accident, the plaintiff had some symptoms of multiple sclerosis, and following the accident, he was treated for seven years for symptoms believed to be related to the multiple sclerosis. In 2001, the plaintiff had an MRI study done which indicated that he had herniated discs caused by trauma, not the underlying multiple sclerosis. The plaintiff subsequently underwent a framinotomy to relieve the symptoms of his herniated discs. The plaintiff continues to suffer from residual pain.The defendant alleged that the plaintiff had shown symptoms of multiple sclerosis prior to the accident and maintained that his ongoing medical issues were also related to the multiple sclerosis.Though the defendant was charged with a motor vehicle violation stemming from the accident, he only pled guilty to a parking ticket.B. Jury Instructions Proposed by |
| Plaintiff1. . Introduction2. . | Plaintiff1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles Standard (should be “Stated,” not | Review Principles Standard (should be “Stated,” not |
| “Standard”)3. . | “Standard”)3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:24. |
| Return to | Return to |
| Courtroom5. . | Courtroom5. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. . | Exhibits6. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict7. . Conclusion8. . | Verdict7. PJI 1:28. Conclusion8. PJI 1:29. |
| Alternate | Alternate |
| Jurors9. . | Jurors9. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence10. . | Evidence10. PJI 1:41. |
| Weighing | Weighing |
| Testimony11. . | Testimony11. PJI 1:60. |
| Burden of Proof—Burden Differs on Different | Burden of Proof—Burden Differs on Different |
| Issues12. . | Issues12. PJI 1:70. |
| Circumstantial | Circumstantial |
| Evidence13. . | Evidence13. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness14. . | Witness14. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally15. . | Witness—Generally15. PJI 1:92. |
| Interested Witness—Employee of a | Interested Witness—Employee of a |
| Party16. . | Party16. PJI 2:10. |
| Negligence | Negligence |
| Defined17. . Foreseeability18. . | Defined17. PJI 2:12. Foreseeability18. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law (Plaintiff asks that section 1111 be read:)The Vehicle and Traffic Law establishes rules of conduct that must be obeyed by motorists. Plaintiff claims that defendant failed to comply with § 1111 of the Vehicle and Traffic Law, which provides that vehicles having the green light have the right of way. In considering the evidence in this case, you must determine whether plaintiff has proved that defendant failed to comply with the Vehicle & Traffic Law. If you find that defendant violated such statutes, then such a violation constitutes negligence. You cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the | Statutory Standard of Care—Vehicle and Traffic Law (Plaintiff asks that section 1111 be read:)The Vehicle and Traffic Law establishes rules of conduct that must be obeyed by motorists. Plaintiff claims that defendant failed to comply with § 1111 of the Vehicle and Traffic Law, which provides that vehicles having the green light have the right of way. In considering the evidence in this case, you must determine whether plaintiff has proved that defendant failed to comply with the Vehicle & Traffic Law. If you find that defendant violated such statutes, then such a violation constitutes negligence. You cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the |
| statute.19. . | statute.19. PJI 2:36. |
| Comparative | Comparative |
| Fault20. . | Fault20. PJI 2:70. |
| Proximate | Proximate |
| Cause21. | Cause21. PJI 2:235 |
| & | & |
| . | 2:245. |
| Vicarious Liability—Owner & Employer (Plaintiff here asks that two instructions be combined. The instructions are | Vicarious Liability—Owner & Employer (Plaintiff here asks that two instructions be combined. The instructions are |
| , | PJI 2:235, |
| “Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment,” and | “Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment,” and |
| , | PJI 2:245, |
| “Vicarious Responsibility—Owner of Vehicle, for Acts of Operator—Permission, Express or Implied.” The instruction requested takes the first sentence of 2:235, but omits the last part, “and is within the scope of the employee's authority.” The plaintiff then presents a truncated version of the second sentence of 2:245, then includes facts about the ownership and operation of the vehicle. Finally, the plaintiff states that the employer is responsible for the negligence of its employee:)An employer is responsible for the act of its employee if the act is in furtherance of the employer's business. Also, the owner of a vehicle is responsible for injuries caused by a driver of the vehicle who was using the vehicle with the permission of the owner. In this case, the vehicle was owned by the Erie County Water Authority, and it was being driven by its employee, Piotrowski, who was driving the vehicle in the normal course of his business at the request of his employer. Therefore, the Erie County Water Authority is fully responsible for any injuries caused by the negligence of its employee in this | “Vicarious Responsibility—Owner of Vehicle, for Acts of Operator—Permission, Express or Implied.” The instruction requested takes the first sentence of 2:235, but omits the last part, “and is within the scope of the employee's authority.” The plaintiff then presents a truncated version of the second sentence of 2:245, then includes facts about the ownership and operation of the vehicle. Finally, the plaintiff states that the employer is responsible for the negligence of its employee:)An employer is responsible for the act of its employee if the act is in furtherance of the employer's business. Also, the owner of a vehicle is responsible for injuries caused by a driver of the vehicle who was using the vehicle with the permission of the owner. In this case, the vehicle was owned by the Erie County Water Authority, and it was being driven by its employee, Piotrowski, who was driving the vehicle in the normal course of his business at the request of his employer. Therefore, the Erie County Water Authority is fully responsible for any injuries caused by the negligence of its employee in this |
| case.22. . | case.22. PJI 2:277. |
| Damages—General23. PJI:2:280. Damages—Personal Injury—Pain and Suffering (Plaintiff replaces “If you decide that defendant is liable,” with “In assessing damages”:)In assessing damages, the plaintiff is entitled to recover a sum of money that will justly and fairly compensate him for any injury and conscious pain and suffering to date caused by defendant.24. PJI:280.1. Loss of Enjoyment of Life (Plaintiff omits: “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that he has suffered,” and second | Damages—General23. PJI:2:280. Damages—Personal Injury—Pain and Suffering (Plaintiff replaces “If you decide that defendant is liable,” with “In assessing damages”:)In assessing damages, the plaintiff is entitled to recover a sum of money that will justly and fairly compensate him for any injury and conscious pain and suffering to date caused by defendant.24. PJI:280.1. Loss of Enjoyment of Life (Plaintiff omits: “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that he has suffered,” and second |
| paragraph.)25. . | paragraph.)25. PJI 2:305. |
| Damages—Personal Injury—Subsequent Injury—Medical Malpractice (Plaintiff adds the underscored part to the second sentence of the instruction.)Defendant is also responsible for any aggravation of the injury and for any additional pain and suffering sustained by the plaintiff as a result of treatment for his injuries, even if such pain and suffering was caused by any negligence or lack of skill of any doctor who treated the plaintiff for the original | Damages—Personal Injury—Subsequent Injury—Medical Malpractice (Plaintiff adds the underscored part to the second sentence of the instruction.)Defendant is also responsible for any aggravation of the injury and for any additional pain and suffering sustained by the plaintiff as a result of treatment for his injuries, even if such pain and suffering was caused by any negligence or lack of skill of any doctor who treated the plaintiff for the original |
| injury.26. . | injury.26. PJI 2:284. |
| Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences Thereof (Plaintiff leaves out qualified: “If you find that the plaintiff is entitled to recover from the | Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences Thereof (Plaintiff leaves out qualified: “If you find that the plaintiff is entitled to recover from the |
| defendant”.)27. . | defendant”.)27. PJI 2:290. |
| Damages—Personal Injury—Loss of | Damages—Personal Injury—Loss of |
| Earnings28. . | Earnings28. PJI 2:281. |
| Damages—Personal Injury—Permanence—Life Expectancy | Damages—Personal Injury—Permanence—Life Expectancy |
| Tables29. . | Tables29. PJI 2:285A. |
| Damages—Personal Injury—Expenses Incurred No Fault Law (Only the first paragraph of the instruction is requested. Plaintiff varies considerably from pattern instruction—adds “lost wages” to the instruction; omits “Plaintiff may recover only for those expenses outside the coverage of the no-fault law”; adds the sentences regarding “double recovery”; adds the sentences about adjustments at the end of the case:)Author's Comment: There is no requirement that a court follow the advice of the Committee in NY PJI; in this case, the plaintiff's request changes the order of charges recommended by NY PJI, 1B | Damages—Personal Injury—Expenses Incurred No Fault Law (Only the first paragraph of the instruction is requested. Plaintiff varies considerably from pattern instruction—adds “lost wages” to the instruction; omits “Plaintiff may recover only for those expenses outside the coverage of the no-fault law”; adds the sentences regarding “double recovery”; adds the sentences about adjustments at the end of the case:)Author's Comment: There is no requirement that a court follow the advice of the Committee in NY PJI; in this case, the plaintiff's request changes the order of charges recommended by NY PJI, 1B |
| NY PJI3d 2:285A |
| at 938 (2018), i.e.: “This charge | at 938 (2018), i.e.: “This charge |
| [] | [PJI 2:285A] |
| is. . .meant to be followed by the charge at | is. . .meant to be followed by the charge at |
| PJI 2:290 |
| (lost earnings).” The plaintiff has requested that the earnings instruction come first, and then has added “lost wages” to | (lost earnings).” The plaintiff has requested that the earnings instruction come first, and then has added “lost wages” to |
| .Plaintiff | PJI 2:285A.Plaintiff |
| is entitled to recover for the reasonable expenditures for medical care and lost wages resulting from the accident in this case. Some part of these expenses are covered by the no-fault law, and some are not. You are not to be concerned with the question of whether a particular item is covered, as the law in New York prevents the plaintiff from obtaining a double recovery. At the end of the case, I will make adjustments to the verdict to deduct any amounts covered by no-fault or other collateral sources. You should therefore be concerned only with determining the full amount of the damages based on the proof presented in the | is entitled to recover for the reasonable expenditures for medical care and lost wages resulting from the accident in this case. Some part of these expenses are covered by the no-fault law, and some are not. You are not to be concerned with the question of whether a particular item is covered, as the law in New York prevents the plaintiff from obtaining a double recovery. At the end of the case, I will make adjustments to the verdict to deduct any amounts covered by no-fault or other collateral sources. You should therefore be concerned only with determining the full amount of the damages based on the proof presented in the |
| case.30. . | case.30. PJI 2:301. |
| Damages—Personal Injury—Collateral Sources—Itemized Verdict (Requested instruction is different from pattern instruction; only the first sentence is from the pattern instruction:)If you decide for the plaintiff on the question of liability, you must include in your verdict an award for past and future pain and suffering. That amount must include the amount for the injury suffered and for the permanent effect of the injury, if any. If you make an award for an item of damages to be incurred in the future, then for each such item, you must state the period of years over which you find the plaintiff will incur such damages. The amount you fix for future damages must represent the full amount awarded to plaintiff for that item of damage without reduction to present value. That is, you are not entitled to discount or reduce the verdict to present value by reason of the circumstance that these are losses or expenses which may span a period of years. Based on your answers to the questions, with respect to the actual amounts awarded (the raw numbers) and the number of years over which the plaintiff will sustain such damages (for each future award), I will later make the calculations to reduce those awards to what would be an appropriate award based on discounting future damages to present value. Thereafter, pursuant to applicable law, most of any award for future damages will not be paid immediately, but will be used to purchase an annuity, which will pay these future damages in monthly payments over many years. Source: CPLR Article 50-B; Andrialis by Andrialis v. Snyder, 159 Misc.2d 419, 603 N.Y.S.2d 670, 674 (Sup. Ct., N.Y.Co.1993).Author's Comment: Plaintiff's inclusion of “source” references in proposing a modification of NY PJI is consistent with recommended | Damages—Personal Injury—Collateral Sources—Itemized Verdict (Requested instruction is different from pattern instruction; only the first sentence is from the pattern instruction:)If you decide for the plaintiff on the question of liability, you must include in your verdict an award for past and future pain and suffering. That amount must include the amount for the injury suffered and for the permanent effect of the injury, if any. If you make an award for an item of damages to be incurred in the future, then for each such item, you must state the period of years over which you find the plaintiff will incur such damages. The amount you fix for future damages must represent the full amount awarded to plaintiff for that item of damage without reduction to present value. That is, you are not entitled to discount or reduce the verdict to present value by reason of the circumstance that these are losses or expenses which may span a period of years. Based on your answers to the questions, with respect to the actual amounts awarded (the raw numbers) and the number of years over which the plaintiff will sustain such damages (for each future award), I will later make the calculations to reduce those awards to what would be an appropriate award based on discounting future damages to present value. Thereafter, pursuant to applicable law, most of any award for future damages will not be paid immediately, but will be used to purchase an annuity, which will pay these future damages in monthly payments over many years. Source: CPLR Article 50-B; Andrialis by Andrialis v. Snyder, 159 Misc.2d 419, 603 N.Y.S.2d 670, 674 (Sup. Ct., N.Y.Co.1993).Author's Comment: Plaintiff's inclusion of “source” references in proposing a modification of NY PJI is consistent with recommended |
| practice.31. | practice.31. PJI 2:31 |
| 5. Damages—Derivative Action Re Spouse—Loss of ServicesC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21917864Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2001 WL 34828146Trial Pleading (Verified Complaint), 1995 WL 17217290Trial Pleading (Answer), 1995 WL 17217291Jury Instruction (Plaintiff's Requests to Charge), 2003 WL 24184695Verdict, Agreement and Settlement (Jury Verdict Sheet), | 5. Damages—Derivative Action Re Spouse—Loss of ServicesC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21917864Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2001 WL 34828146Trial Pleading (Verified Complaint), 1995 WL 17217290Trial Pleading (Answer), 1995 WL 17217291Jury Instruction (Plaintiff's Requests to Charge), 2003 WL 24184695Verdict, Agreement and Settlement (Jury Verdict Sheet), |
| 2.Sample | 2003 WL 241846852.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:11 Motor | 4:48, 7:209, 7:209A§ 4:11 Motor |
| vehicle negligence: pedestrian struck by taxi/Personal injury: head injuries and cognitive difficulties/One plaintiff-guardian on behalf of infant; one corporate and one individual defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Seven-year-old child suffered a head injury with resultant cognitive deficits and post-concussion syndrome. Although child had been having some academic difficulties before the accident, testimony indicated that his condition dramatically declined following the accident, and he was then placed in a class for learning-disabled children. Defendant disputes that cognitive difficulties were caused by accident.Case Name: Lydia Jackson, Individually, and as Mother and Natural Guardian of Lance Jackson, an infant, Plaintiff, v. Mungo One, Inc. and Bolivar Jenesaca, Defendants.Court: Supreme Court of New York, New York CountyJudge: Kibbie F. PayneDocket Number: 111153/00Verdict Date: January 14, 2003Outcome: $550,000 verdict; reduced to $412,500 based on the plaintiff's 25% comparative negligence.Brief Summary of Facts: Plaintiff Lance Jackson, 7, was struck while crossing an uncontrolled intersection at West 117th Street in Manhattan, N.Y. Testimony indicated that defendant Bolivar Jenesaca, who was driving defendant Mungo One Inc.'s livery station wagon, hit Jackson, who was in the crosswalk. A plaintiff's eyewitness testified that Jenesaca's brakes screeched for so long that the witness had time to turn and observe the station wagon strike the child. Jenesaca contended that a van parked near the corner of the intersection prevented him from seeing Jackson until the boy was three feet in front of his vehicle. Jenesaca added that he was traveling at 15 mph. A passenger in his vehicle was never identified or deposed.B. Jury Instructions Proposed by | vehicle negligence: pedestrian struck by taxi/Personal injury: head injuries and cognitive difficulties/One plaintiff-guardian on behalf of infant; one corporate and one individual defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Seven-year-old child suffered a head injury with resultant cognitive deficits and post-concussion syndrome. Although child had been having some academic difficulties before the accident, testimony indicated that his condition dramatically declined following the accident, and he was then placed in a class for learning-disabled children. Defendant disputes that cognitive difficulties were caused by accident.Case Name: Lydia Jackson, Individually, and as Mother and Natural Guardian of Lance Jackson, an infant, Plaintiff, v. Mungo One, Inc. and Bolivar Jenesaca, Defendants.Court: Supreme Court of New York, New York CountyJudge: Kibbie F. PayneDocket Number: 111153/00Verdict Date: January 14, 2003Outcome: $550,000 verdict; reduced to $412,500 based on the plaintiff's 25% comparative negligence.Brief Summary of Facts: Plaintiff Lance Jackson, 7, was struck while crossing an uncontrolled intersection at West 117th Street in Manhattan, N.Y. Testimony indicated that defendant Bolivar Jenesaca, who was driving defendant Mungo One Inc.'s livery station wagon, hit Jackson, who was in the crosswalk. A plaintiff's eyewitness testified that Jenesaca's brakes screeched for so long that the witness had time to turn and observe the station wagon strike the child. Jenesaca contended that a van parked near the corner of the intersection prevented him from seeing Jackson until the boy was three feet in front of his vehicle. Jenesaca added that he was traveling at 15 mph. A passenger in his vehicle was never identified or deposed.B. Jury Instructions Proposed by |
| Plaintiff1. | Plaintiff1. PJI 1:20 |
| to | to |
| . | 1:28. |
| Charges After Trial (Plaintiff here asks for all eleven instructions from 1:20 to | Charges After Trial (Plaintiff here asks for all eleven instructions from 1:20 to |
| 1:28.)2. . | 1:28.)2. PJI 1:39. |
| No Inference from | No Inference from |
| Rulings3. . | Rulings3. PJI 1:40. |
| Consider only Competent | Consider only Competent |
| Evidence4. . | Evidence4. PJI 1:41. |
| Weighing | Weighing |
| Testimony5. . | Testimony5. PJI 1:60. |
| Burden of | Burden of |
| Proof6. . | Proof6. PJI 1:70. |
| Circumstantial EvidenceAuthor's Comment: The absence of a request for | Circumstantial EvidenceAuthor's Comment: The absence of a request for |
| PJI 1:75 |
| (failure to produce witness) suggests that the defendant had a good explanation for non-production of the passenger in the defendant's | (failure to produce witness) suggests that the defendant had a good explanation for non-production of the passenger in the defendant's |
| vehicle.7. . | vehicle.7. PJI 1:91. |
| Interested | Interested |
| Witness8. . | Witness8. PJI 2:10. |
| Common-Law Standard of | Common-Law Standard of |
| Care9. . | Care9. PJI 2:12. |
| Common-Law Standard | Common-Law Standard |
| Foreseeability10. . | Foreseeability10. PJI 2:29. |
| Standard of Care—Violation of Ordinance—NYC (Plaintiff added “NYC” to title of instruction, and listed the appropriate VHT sections and “NYC Police | Standard of Care—Violation of Ordinance—NYC (Plaintiff added “NYC” to title of instruction, and listed the appropriate VHT sections and “NYC Police |
| Regulations”)A. . | Regulations”)A. Vehicle & Traffic Law 110. |
| Definition of CrosswalkB. NYC Police Regulation 4-02(c). Dangerous DrivingC. NYC Police Regulation 4-06(1)(3). Speed RestrictionsD. NYC Police Regulation 4-04(b). Pedestrians' Right of Way in | Definition of CrosswalkB. NYC Police Regulation 4-02(c). Dangerous DrivingC. NYC Police Regulation 4-06(1)(3). Speed RestrictionsD. NYC Police Regulation 4-04(b). Pedestrians' Right of Way in |
| Crosswalk11. . | Crosswalk11. PJI 2:48. |
| Comparative Negligence | Comparative Negligence |
| (Infants)12. . | (Infants)12. PJI 2:262. |
| Recovery of Infant Not Reduced by Conduct of | Recovery of Infant Not Reduced by Conduct of |
| Parent13. . | Parent13. PJI 2:70. |
| Proximate | Proximate |
| Cause14. . | Cause14. PJI 2:75. |
| Pedestrian Crossing the | Pedestrian Crossing the |
| Highway15. . | Highway15. PJI 2:77.1. |
| Duty to See What is There to Be Seen(The Plaintiff here adds, presumably referring only to the two threshold instructions, 2:88E and 2:88F:)In the event that the Court denies plaintiffs' motion for summary judgment on the issue of threshold, the plaintiffs respectfully request that the Court charge the | Duty to See What is There to Be Seen(The Plaintiff here adds, presumably referring only to the two threshold instructions, 2:88E and 2:88F:)In the event that the Court denies plaintiffs' motion for summary judgment on the issue of threshold, the plaintiffs respectfully request that the Court charge the |
| following:16. . | following:16. PJI 2:88E. |
| Permanent Consequential Limitation of Use of Body Organ or Member (formerly | Permanent Consequential Limitation of Use of Body Organ or Member (formerly |
| ).17. . | PJI 2:88F).17. PJI 2:88F. |
| Significant Limitation of Use of Body Function or System (formerly | Significant Limitation of Use of Body Function or System (formerly |
| ). 18. . | PJI 2:88E). 18. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering21. . | Suffering21. PJI 2:280.1. |
| Loss of Enjoyment of | Loss of Enjoyment of |
| Life22. . | Life22. PJI 2:281. |
| Damages—Personal Injury—Permanence—Life Expectancy Tables23. Life expectancy tables—Appendix A (Plaintiff notes:)LANCE JACKSON is now ten (10) years old, therefore according to the life tables, his life expectation is — | Damages—Personal Injury—Permanence—Life Expectancy Tables23. Life expectancy tables—Appendix A (Plaintiff notes:)LANCE JACKSON is now ten (10) years old, therefore according to the life tables, his life expectation is — |
| years.24. . | years.24. PJI 2:282. |
| Damages—Personal Injury—Aggravation of Pre-existing InjuryC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21430525Expert Trial Transcript, (Transcript), 2003 WL 24295217Partial Expert Testimony, (Partial Testimony of Finkel, M.D.), 2000 WL 35465838Expert Trial Transcript, (Transcript of Knight M.D.), 2000 WL 35465960Jury Instruction (Request to Charge on Behalf of the Plaintiffs), 2003 WL 24301666Docket, 0111153/2000 (N.Y. Sup. Oct. 24, 2000)Trial Order, | Damages—Personal Injury—Aggravation of Pre-existing InjuryC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21430525Expert Trial Transcript, (Transcript), 2003 WL 24295217Partial Expert Testimony, (Partial Testimony of Finkel, M.D.), 2000 WL 35465838Expert Trial Transcript, (Transcript of Knight M.D.), 2000 WL 35465960Jury Instruction (Request to Charge on Behalf of the Plaintiffs), 2003 WL 24301666Docket, 0111153/2000 (N.Y. Sup. Oct. 24, 2000)Trial Order, |
| 2.Sample | 2003 WL 253384422.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“vehic! and negligence”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:12 Motor | 4:48, 7:209, 7:209A§ 4:12 Motor |
| vehicle negligence: bus hitting pedestrian/Personal injury: foot and elbow fractures, torn ligaments in arm/One plaintiff, two governmental defendantsA. BackgroundType of Case: Motor Vehicle Negligence; bus striking pedestrianType of Injury: fractures to left foot and elbow, torn ligaments in left armCase Name: Mary Elizabeth STEWART, Plaintiff, v. Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Faviola SotoDocket Number: 113699/03Verdict Date: October, 2004Outcome: $625,000 verdict, reduced by judge to $437,500Brief Summary of Facts: A 43-year-old female suffered fractures to her left foot and elbow and torn ligaments in her left arm when she was struck by the defendants' bus as she crossed an intersection on a city street. The plaintiff contended that the defendants failed to properly hire, train and supervise their employees. The plaintiff further contended that the nonparty driver operated the vehicle in a negligent manner, failed to keep a proper lookout, and failed to yield the right-of-way to a pedestrian. The defendants denied liability and contended that the plaintiff failed to use due care for her own safety.B. Jury Instructions1. Jury Instructions Proposed by | vehicle negligence: bus hitting pedestrian/Personal injury: foot and elbow fractures, torn ligaments in arm/One plaintiff, two governmental defendantsA. BackgroundType of Case: Motor Vehicle Negligence; bus striking pedestrianType of Injury: fractures to left foot and elbow, torn ligaments in left armCase Name: Mary Elizabeth STEWART, Plaintiff, v. Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Faviola SotoDocket Number: 113699/03Verdict Date: October, 2004Outcome: $625,000 verdict, reduced by judge to $437,500Brief Summary of Facts: A 43-year-old female suffered fractures to her left foot and elbow and torn ligaments in her left arm when she was struck by the defendants' bus as she crossed an intersection on a city street. The plaintiff contended that the defendants failed to properly hire, train and supervise their employees. The plaintiff further contended that the nonparty driver operated the vehicle in a negligent manner, failed to keep a proper lookout, and failed to yield the right-of-way to a pedestrian. The defendants denied liability and contended that the plaintiff failed to use due care for her own safety.B. Jury Instructions1. Jury Instructions Proposed by |
| Plaintiff1. . Introduction2. . | Plaintiff1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:60. |
| Burden of Proof—When Burden Differs on Different | Burden of Proof—When Burden Differs on Different |
| Issues4. . | Issues4. PJI 1:24. |
| Return to | Return to |
| Courtroom5. . | Courtroom5. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. . | Exhibits6. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict7. . Conclusion8. . | Verdict7. PJI 1:28. Conclusion8. PJI 1:29. |
| Alternate | Alternate |
| Jurors9. . | Jurors9. PJI 1:55. |
| Admission Against Interest—Admission by a Party—By Statement (Plaintiff here mentions, as a statement against interest:)Defendant's driver made a statement to P.O. Prescott that “when passengers began screaming. . .he then stopped the bus and found pedestrian pinned under the | Admission Against Interest—Admission by a Party—By Statement (Plaintiff here mentions, as a statement against interest:)Defendant's driver made a statement to P.O. Prescott that “when passengers began screaming. . .he then stopped the bus and found pedestrian pinned under the |
| bus”10. . | bus”10. PJI 1:90. |
| General Instruction—Expert Witness (Plaintiff here mentions names of expert witnesses:)(Dr. Post, an orthopedic surgeon, Dr. Bedansit, a toxicologist and Dr. Lenzo, an orthopedic | General Instruction—Expert Witness (Plaintiff here mentions names of expert witnesses:)(Dr. Post, an orthopedic surgeon, Dr. Bedansit, a toxicologist and Dr. Lenzo, an orthopedic |
| surgeon).11. . | surgeon).11. PJI 1:92. |
| Interested Witness—Employee of Party (Plaintiff here mentions name of employee:)(Rafael D. Laverde, the bus | Interested Witness—Employee of Party (Plaintiff here mentions name of employee:)(Rafael D. Laverde, the bus |
| operator).12. . | operator).12. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally13. . | Defined—Generally13. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Plaintiff here requests the following sections:)VTL Secs. 1112; 1111(a)(1); 1146; and | Statutory Standard of Care—Vehicle and Traffic Law Violation (Plaintiff here requests the following sections:)VTL Secs. 1112; 1111(a)(1); 1146; and |
| 118014. . | 118014. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General15. . | General15. PJI 2:75. |
| Motor Vehicle Accidents—Pedestrian Crossing Highway (Plaintiff provides confusing indications as to what she wants in this instruction. It appears that Plaintiff wants the entire instruction read, omitting the optional phrase “except that any pedestrian crossing a roadway at a point where a pedestrian tunnel or overpass has been provided shall yield the right of way to both vehicles.” After reciting the entire Instruction, which includes an extensive quote from VTL section 1152, Plaintiff states the following:)VTL Secs. 1111 and 1112 should be given instead of VTL 1152. [See p. 400 of PJI commentary citing Burns v. Dixon, 46 A.D.2d 943, 362 N.Y.S.2d 245 and Applebaum v. Hersh, 26 A.D.2d 58, 270 N.Y.S.2d 805.]Author's Comment: The referenced commentary—which could be mentioned here in the charge request—is, “The pattern charge applies when no traffic control system governs the movements of the motorist and pedestrian. When there is a traffic control system in operation, a charge based on VTL §§ 1111 and 1112 must be given.” 1A | Motor Vehicle Accidents—Pedestrian Crossing Highway (Plaintiff provides confusing indications as to what she wants in this instruction. It appears that Plaintiff wants the entire instruction read, omitting the optional phrase “except that any pedestrian crossing a roadway at a point where a pedestrian tunnel or overpass has been provided shall yield the right of way to both vehicles.” After reciting the entire Instruction, which includes an extensive quote from VTL section 1152, Plaintiff states the following:)VTL Secs. 1111 and 1112 should be given instead of VTL 1152. [See p. 400 of PJI commentary citing Burns v. Dixon, 46 A.D.2d 943, 362 N.Y.S.2d 245 and Applebaum v. Hersh, 26 A.D.2d 58, 270 N.Y.S.2d 805.]Author's Comment: The referenced commentary—which could be mentioned here in the charge request—is, “The pattern charge applies when no traffic control system governs the movements of the motorist and pedestrian. When there is a traffic control system in operation, a charge based on VTL §§ 1111 and 1112 must be given.” 1A |
| , | NY PJI3d 2:75, |
| at 474 (2018) (citations omitted). The Comment preceding | at 474 (2018) (citations omitted). The Comment preceding |
| PJI 2:75 |
| contains an extensive discussion of both the “Rules of the Road” and the “No-Fault” Insurance | contains an extensive discussion of both the “Rules of the Road” and the “No-Fault” Insurance |
| Law.16. . | Law.16. PJI 2:77.1. |
| (entitled “Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental | (entitled “Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental |
| Instruction]”)17. . | Instruction]”)17. PJI 2:235. |
| (entitled “Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment”) (Instead of this Instruction, Plaintiff requests:If you find that Defendant's driver, Rafael D. Laverde was negligent then you will find that Defendant New York City Transit Authority is negligent.(Plaintiff mentions that this statement is also in lieu of reading VTL section | (entitled “Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment”) (Instead of this Instruction, Plaintiff requests:If you find that Defendant's driver, Rafael D. Laverde was negligent then you will find that Defendant New York City Transit Authority is negligent.(Plaintiff mentions that this statement is also in lieu of reading VTL section |
| 388.)18. . Damages—General19. . | 388.)18. PJI 2:277. Damages—General19. PJI 2:280. |
| Damages—Injury and Pain and | Damages—Injury and Pain and |
| Suffering20. . | Suffering20. PJI 2:280.1. |
| Loss of Enjoyment of | Loss of Enjoyment of |
| Life21. . | Life21. PJI 2:281. |
| Damages—Personal Injury—Permanence—Life Expectancy Tables (Plaintiff adds:)(38.1 | Damages—Personal Injury—Permanence—Life Expectancy Tables (Plaintiff adds:)(38.1 |
| years)22. . | years)22. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In General2. Jury Instructions Proposed by | Damages—Personal Injury—Loss of Earnings—In General2. Jury Instructions Proposed by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. . | Exhibits6. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict7. . | Verdict7. PJI 1:26B. |
| Special Verdict (actually, | Special Verdict (actually, |
| , | PJI 1:97, |
| which defendant also lists | which defendant also lists |
| later)8. . | later)8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . Conclusion10. . Impartiality11. . | Sympathy9. PJI 1:28. Conclusion10. PJI 1:36. Impartiality11. PJI 1:39. |
| No Inference from | No Inference from |
| Rulings.12. . | Rulings.12. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence13. . | Evidence13. PJI 1:41. |
| Weighing | Weighing |
| Testimony14. . | Testimony14. PJI 1:75. |
| General Instruction—Evidence—Failure to Produce Witness—In | General Instruction—Evidence—Failure to Produce Witness—In |
| General15. . | General15. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness16. . | Witness16. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness17. . | Witness17. PJI 1:94. |
| General Instruction—Use of Pre-Trial Deposition Upon | General Instruction—Use of Pre-Trial Deposition Upon |
| Trial18. . | Trial18. PJI 1:97. |
| General Instruction-Special | General Instruction-Special |
| Verdicts19. . | Verdicts19. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally20. . | Defined—Generally20. PJI 2:20. |
| Common Law Standard of Care—Care Required of Persons Under Disability—Intoxicated | Common Law Standard of Care—Care Required of Persons Under Disability—Intoxicated |
| Person21. . | Person21. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General22. . | General22. PJI 2:71. |
| Proximate Cause—Concurrent | Proximate Cause—Concurrent |
| Causes23. . | Causes23. PJI 2:75. |
| Motor Vehicle Accidents—Pedestrian Crossing HighwayC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2004 WL 5316812Verdict and Settlement Summary, 2004 WL 5316953Trial Pleading (Verified Complaint), 2003 WL 25549601Jury Instruction (Defendant's Request to Charge), 2004 WL 5329231Jury Instruction (Plaintiff's Request to Charge), 2003 WL 255496022.Sample Westlaw Query For Trial Court Documents in Similar Cases:“vehic! & negligence”D. Research References1.Key | Motor Vehicle Accidents—Pedestrian Crossing HighwayC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2004 WL 5316812Verdict and Settlement Summary, 2004 WL 5316953Trial Pleading (Verified Complaint), 2003 WL 25549601Jury Instruction (Defendant's Request to Charge), 2004 WL 5329231Jury Instruction (Plaintiff's Request to Charge), 2003 WL 255496022.Sample Westlaw Query For Trial Court Documents in Similar Cases:“vehic! & negligence”D. Research References1.Key |
| Numbers | NumbersAutomobiles 228 |
| to | to |
| 251Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:23 to |
| , , § 4:13 Motor | 4:48, 7:209, 7:209A§ 4:13 Motor |
| vehicle negligence: broadside collision; stop sign/Personal injury: disc herniations, torn shoulder tendon/One plaintiff, one individual and one corporate defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Alleged disc herniations at C4-5 and C5-6, with radiculopathy; longitudinal split tear of left (nondominant) shoulder's bicipital tendon.Case Name: Thomas Ahr, Plaintiff, v. Joseph Karolewski and Enviro Mechanical Corp., Defendants.Court: Supreme Court of New York, Suffolk CountyJudge: Howard BerlerDocket Number: 290909/03Verdict Date: November 17, 2005Outcome: Verdict and judgment for defendant — reversed on appeal on basis that defendant's negligence necessarily caused the accident.Brief Summary of Facts: On an early morning in June, plaintiff, an independent bread deliveryman, was driving eastbound at about 30 mph, and as he proceeded through an intersection, his truck struck the rear of the passenger side of a van owned by the corporate defendant, and operated by the individual defendant (alleged to be vicariously liable), traveling southbound. Plaintiff claimed the defendant ignored a stop sign. He claimed back and shoulder injuries, although he did not undergo surgery or physical therapy. The defendant contended that he did not ignore the stop sign but executed a full stop and did not see any oncoming vehicles, and that the impact occurred at the moment that he first saw the plaintiff's vehicle. He further claimed that the collision occurred after he had nearly cleared the intersection and that the plaintiff had not activated his truck's lights. Plaintiff's expert orthopedic surgeon determined that plaintiff's injuries were causally related to the accident and opined that his shoulder injury would eventually require arthroscopic surgery. Plaintiff sought recovery of $8,800 for lost earnings and bread products, $6,500 for out-of-pocket medical expenses, $6,000 to satisfy an outstanding medical-expenses lien, and unspecified damages for past and future pain and suffering. Defense counsel contended that the plaintiff did not sustain a serious injury, as defined by the no-fault law, Insurance Law § 5102(d). The jury returned a verdict finding that the defendant was negligent in the operation of his vehicle, but that his negligence was not a substantial cause of the accident. The court denied the plaintiff's motion to set aside the verdict as against the weight of the evidence and for a new trial. On appeal, Ahr v. Karolewski, 32 A.D.3d 805, 821 N.Y.S.2d 236 (2d Dept. 2006), the Second Department reversed and granted a new trial, finding that the verdict could not have been reached upon any fair interpretation of the evidence, since the defendant's negligence necessarily contributed to the happening of the accident.B. Jury Instructions Given by the | vehicle negligence: broadside collision; stop sign/Personal injury: disc herniations, torn shoulder tendon/One plaintiff, one individual and one corporate defendantA. BackgroundType of Case: Motor Vehicle NegligenceType of Injury: Alleged disc herniations at C4-5 and C5-6, with radiculopathy; longitudinal split tear of left (nondominant) shoulder's bicipital tendon.Case Name: Thomas Ahr, Plaintiff, v. Joseph Karolewski and Enviro Mechanical Corp., Defendants.Court: Supreme Court of New York, Suffolk CountyJudge: Howard BerlerDocket Number: 290909/03Verdict Date: November 17, 2005Outcome: Verdict and judgment for defendant — reversed on appeal on basis that defendant's negligence necessarily caused the accident.Brief Summary of Facts: On an early morning in June, plaintiff, an independent bread deliveryman, was driving eastbound at about 30 mph, and as he proceeded through an intersection, his truck struck the rear of the passenger side of a van owned by the corporate defendant, and operated by the individual defendant (alleged to be vicariously liable), traveling southbound. Plaintiff claimed the defendant ignored a stop sign. He claimed back and shoulder injuries, although he did not undergo surgery or physical therapy. The defendant contended that he did not ignore the stop sign but executed a full stop and did not see any oncoming vehicles, and that the impact occurred at the moment that he first saw the plaintiff's vehicle. He further claimed that the collision occurred after he had nearly cleared the intersection and that the plaintiff had not activated his truck's lights. Plaintiff's expert orthopedic surgeon determined that plaintiff's injuries were causally related to the accident and opined that his shoulder injury would eventually require arthroscopic surgery. Plaintiff sought recovery of $8,800 for lost earnings and bread products, $6,500 for out-of-pocket medical expenses, $6,000 to satisfy an outstanding medical-expenses lien, and unspecified damages for past and future pain and suffering. Defense counsel contended that the plaintiff did not sustain a serious injury, as defined by the no-fault law, Insurance Law § 5102(d). The jury returned a verdict finding that the defendant was negligent in the operation of his vehicle, but that his negligence was not a substantial cause of the accident. The court denied the plaintiff's motion to set aside the verdict as against the weight of the evidence and for a new trial. On appeal, Ahr v. Karolewski, 32 A.D.3d 805, 821 N.Y.S.2d 236 (2d Dept. 2006), the Second Department reversed and granted a new trial, finding that the verdict could not have been reached upon any fair interpretation of the evidence, since the defendant's negligence necessarily contributed to the happening of the accident.B. Jury Instructions Given by the |
| Court1. . | Court1. PJI 1:20. |
| Introduction2. You have also heard the contentions of each party with respect to the facts as expressed to you by the respective attorneys during their concluding argument.(Transcript page | Introduction2. You have also heard the contentions of each party with respect to the facts as expressed to you by the respective attorneys during their concluding argument.(Transcript page |
| 54)3. . | 54)3. PJI 1:21. |
| Review Principles | Review Principles |
| Stated4. . | Stated4. PJI 1:22. |
| Falsus in | Falsus in |
| Uno5. . | Uno5. PJI 1:60. |
| General Instruction — Burden of Proof — When Burden Differs on Different | General Instruction — Burden of Proof — When Burden Differs on Different |
| Issues6. | Issues6. PJI 1:24 |
| Return to Courtroom (slightly modified and enhanced, Transcript at pages 58–59, as follows:)If in your deliberations your recollection of any part of the testimony should fail or you should find yourself in doubt concerning my instructions to you on the law, it is your privilege, if you so desire, to return to the courtroom for the purpose of having such testimony or instructions read to you. If you have any questions regarding the law of the case or any request for testimony to be read back or any questions regarding the questionnaire you will receive to take to the deliberation room, which hopefully will help you render a fair and just verdict, the foreperson is to carefully set down in writing such question or request, give same to the officer situated outside the courtroom. You will then be reconvened inside the courtroom and I will attempt to comply with your | Return to Courtroom (slightly modified and enhanced, Transcript at pages 58–59, as follows:)If in your deliberations your recollection of any part of the testimony should fail or you should find yourself in doubt concerning my instructions to you on the law, it is your privilege, if you so desire, to return to the courtroom for the purpose of having such testimony or instructions read to you. If you have any questions regarding the law of the case or any request for testimony to be read back or any questions regarding the questionnaire you will receive to take to the deliberation room, which hopefully will help you render a fair and just verdict, the foreperson is to carefully set down in writing such question or request, give same to the officer situated outside the courtroom. You will then be reconvened inside the courtroom and I will attempt to comply with your |
| request.7. . | request.7. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits8. . | Exhibits8. PJI 1:26. |
| Five-Sixths Verdict (omitting the second sentence advising the jurors to report to the court “[w]henever five of your members are in agreement on a verdict”. Transcript at page | Five-Sixths Verdict (omitting the second sentence advising the jurors to report to the court “[w]henever five of your members are in agreement on a verdict”. Transcript at page |
| 60.)9. . | 60.)9. PJI 1:91. |
| General Instruction — Interested Witness — Generally (modified by substituting “impeached” for “challenged,” thus: “You are at liberty, if you deem proper, under all of the circumstances to do so to disbelieve the testimony of such a witness even though it is not otherwise impeached or contradicted.” Transcript at page 60 (emphasis | General Instruction — Interested Witness — Generally (modified by substituting “impeached” for “challenged,” thus: “You are at liberty, if you deem proper, under all of the circumstances to do so to disbelieve the testimony of such a witness even though it is not otherwise impeached or contradicted.” Transcript at page 60 (emphasis |
| added)).10. . | added)).10. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally11. . | Defined—Generally11. PJI 2:12. |
| Common Law Standard of Care—Foreseeability — Generally (modified by switching order of last two sentences, so that non-existence of negligence is explained before existence of negligence. Transcript at | Common Law Standard of Care—Foreseeability — Generally (modified by switching order of last two sentences, so that non-existence of negligence is explained before existence of negligence. Transcript at |
| 62)12. . | 62)12. PJI 2:80. |
| Motor Vehicle Accidents—Collision at Intersection Controlled by Stop or Yield | Motor Vehicle Accidents—Collision at Intersection Controlled by Stop or Yield |
| Sign13. . | Sign13. PJI 2:80A. |
| Motor Vehicle Accidents—Duty of Driver on Through | Motor Vehicle Accidents—Duty of Driver on Through |
| Highway14. . | Highway14. PJI 2:77.1. |
| Proper lookout.15. If you find defendant Karolewski was negligent, you must next decide whether his negligence was a substantial factor in contributing to the cause of the accident on that day. (Transcript at | Proper lookout.15. If you find defendant Karolewski was negligent, you must next decide whether his negligence was a substantial factor in contributing to the cause of the accident on that day. (Transcript at |
| 65)16. . | 65)16. PJI 2:70. |
| Proximate Cause—In General (substituting “accident” for “injury”. (Transcript at 65)17. If you find that defendant Karolewski's negligence was not a substantial factor in contributing to the cause of the accident, you need deliberate no further and report your verdict to the Court. (Transcript at | Proximate Cause—In General (substituting “accident” for “injury”. (Transcript at 65)17. If you find that defendant Karolewski's negligence was not a substantial factor in contributing to the cause of the accident, you need deliberate no further and report your verdict to the Court. (Transcript at |
| 66)18. . | 66)18. PJI 2:36. |
| Comparative Fault (omitting, however, “The burden is on the defendant to prove that the plaintiff . . . was negligent and that his negligence contributed to causing [the accident].” Transcript at 66).Author's Comment: Since the verdict for the defendants in this comparative fault case was reversed on the basis that the defendant's negligence necessarily contributed to the accident, one can wonder whether the outcome was affected by the trial court's failure to follow the pattern charge, | Comparative Fault (omitting, however, “The burden is on the defendant to prove that the plaintiff . . . was negligent and that his negligence contributed to causing [the accident].” Transcript at 66).Author's Comment: Since the verdict for the defendants in this comparative fault case was reversed on the basis that the defendant's negligence necessarily contributed to the accident, one can wonder whether the outcome was affected by the trial court's failure to follow the pattern charge, |
| , | PJI 2:36, |
| in placing the burden on the defendant to prove that the plaintiff was negligent and that his negligence contributed to causing the | in placing the burden on the defendant to prove that the plaintiff was negligent and that his negligence contributed to causing the |
| accident.19. . [Example]20. . | accident.19. PJI 2:36.1. [Example]20. PJI 2:26. |
| Statutory Standard of Care — Vehicle and Traffic Law Violation (modified at Transcript page 66, by omission of first sentence, stating that VTL establishes mandatory rules of conduct and stating what specific violation was alleged; also, second sentence of pattern charge is modified to refer to “any” party, thus: “If you find that any of the parties violated any of the sections of the Vehicle and Traffic Law, such violation constitutes | Statutory Standard of Care — Vehicle and Traffic Law Violation (modified at Transcript page 66, by omission of first sentence, stating that VTL establishes mandatory rules of conduct and stating what specific violation was alleged; also, second sentence of pattern charge is modified to refer to “any” party, thus: “If you find that any of the parties violated any of the sections of the Vehicle and Traffic Law, such violation constitutes |
| negligence.”).21. . | negligence.”).21. PJI 1:97. |
| General Instruction — Special Verdicts (modified, at Transcript page 69, by omission of last sentence of pattern charge advising jury not to “assume from the questions or from the wording of the questions or from my instructions on them what the answers should be.”)22. “The written questions provided to you will hopefully assist you in rendering a fair and just verdict. And they are . . ..” (Transcript at 69)23. Special Verdict Form | General Instruction — Special Verdicts (modified, at Transcript page 69, by omission of last sentence of pattern charge advising jury not to “assume from the questions or from the wording of the questions or from my instructions on them what the answers should be.”)22. “The written questions provided to you will hopefully assist you in rendering a fair and just verdict. And they are . . ..” (Transcript at 69)23. Special Verdict Form |
| PJI 2:36 |
| SV—II. Bifurcated Trial — Comparative Fault (enhanced by referring to specific | SV—II. Bifurcated Trial — Comparative Fault (enhanced by referring to specific |
| occurrence).24. . | occurrence).24. PJI 1:27. |
| Exclude | Exclude |
| Sympathy25. . | Sympathy25. PJI 1:28. |
| ConclusionC. Case Documents Available on Westlaw1. Verified Answer, | ConclusionC. Case Documents Available on Westlaw1. Verified Answer, |
| Verdict | 2003 WL 25563291Verdict |
| and Settlement Summary, | and Settlement Summary, |
| Jury | 2005 WL 3618183Jury |
| Instruction, | Instruction, |
| Trial | 2005 WL 5553915Trial |
| Court Judgment, | Court Judgment, |
| Appellate | 2006 WL 4758571Appellate |
| Decision, Ahr v. Karolewski, 32 A.D.3d 805, 821 N.Y.S.2d 236 (2d Dept. 2006)2. Sample Westlaw Query for Trial Court Documents in Similar Cases: “stop sign” & intersectionD. Research References1.Key | Decision, Ahr v. Karolewski, 32 A.D.3d 805, 821 N.Y.S.2d 236 (2d Dept. 2006)2. Sample Westlaw Query for Trial Court Documents in Similar Cases: “stop sign” & intersectionD. Research References1.Key |
| Numbers , , , , | NumbersNegligence 238, 1720, 1721, 1732, 1740Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Vehicle and Traffic Law (2d ed.)New York Practice Series — New York Law of TortsProof of Damages For Decedent's Pain and Suffering, 24 Am. Jur. Proof of Facts 3d 337Punitive Damages in Motor Vehicle Accident Litigation, 17 Am. Jur. Proof of Facts 3d 3114.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 1172§ 4:14 Motor vehicle negligence: motorcyclist struck by automobile/Personal injury: shoulder dislocationA. BackgroundType of Case: Motor Vehicle Negligence (comparative: plaintiff 75% responsible)Type of Injury: Acromioclavicular dislocation, with arthralgiaCase Name: Miller v. Tacopina; Putnam Leasing Co., Inc.Court: Supreme Court of New York, New York CountyJudge: Kibbie PayneDocket Number: 113577 / 03Verdict Date: January, 2005Outcome: Verdict for plaintiff, $18,840, including $5,000 for past pain and suffering and $5,000 for future pain and suffering; Appellate Division entered order of additur to increasing award to $40,000 for past pain and suffering and future pain and suffering unless defendant stipulated to new trial.Brief Summary of Facts: A 26-year-old male suffered acromioclavicular dislocation, with arthralgia, when his motorcycle was struck broadside by the codefendant's vehicle, operated by the 37-year-old male defendant, as the defendant turned right across the plaintiff's lane of travel while the parties were traveling in the same direction on a public roadway. The plaintiff contended that the defendant operated the vehicle in a negligent manner, failed to keep a proper lookout, and failed to signal his intent to turn right. The defendants denied liablity, and contended that the plaintiff was comparatively negligent, and assumed the risk of injury. The plaintiff was found to be 75 percent comparatively negligent. The verdict of $18,840 included $5,000 for past and future pain and suffering. On appeal, the Appellate Division, First Department, found the damages award inadequate and ordered a new trial unless the defendant stipulated to modification of the award increasing the awards for past and future pain and suffering from $5,000 to $40,000 each.B. Pre-Trial Jury Instructions Given by the | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Vehicle and Traffic Law (2d ed.)New York Practice Series — New York Law of TortsProof of Damages For Decedent's Pain and Suffering, 24 Am. Jur. Proof of Facts 3d 337Punitive Damages in Motor Vehicle Accident Litigation, 17 Am. Jur. Proof of Facts 3d 3114.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 1172§ 4:14 Motor vehicle negligence: motorcyclist struck by automobile/Personal injury: shoulder dislocationA. BackgroundType of Case: Motor Vehicle Negligence (comparative: plaintiff 75% responsible)Type of Injury: Acromioclavicular dislocation, with arthralgiaCase Name: Miller v. Tacopina; Putnam Leasing Co., Inc.Court: Supreme Court of New York, New York CountyJudge: Kibbie PayneDocket Number: 113577 / 03Verdict Date: January, 2005Outcome: Verdict for plaintiff, $18,840, including $5,000 for past pain and suffering and $5,000 for future pain and suffering; Appellate Division entered order of additur to increasing award to $40,000 for past pain and suffering and future pain and suffering unless defendant stipulated to new trial.Brief Summary of Facts: A 26-year-old male suffered acromioclavicular dislocation, with arthralgia, when his motorcycle was struck broadside by the codefendant's vehicle, operated by the 37-year-old male defendant, as the defendant turned right across the plaintiff's lane of travel while the parties were traveling in the same direction on a public roadway. The plaintiff contended that the defendant operated the vehicle in a negligent manner, failed to keep a proper lookout, and failed to signal his intent to turn right. The defendants denied liablity, and contended that the plaintiff was comparatively negligent, and assumed the risk of injury. The plaintiff was found to be 75 percent comparatively negligent. The verdict of $18,840 included $5,000 for past and future pain and suffering. On appeal, the Appellate Division, First Department, found the damages award inadequate and ordered a new trial unless the defendant stipulated to modification of the award increasing the awards for past and future pain and suffering from $5,000 to $40,000 each.B. Pre-Trial Jury Instructions Given by the |
| Court1. . | Court1. PJI 1:1. |
| Introduction to Jury (modified,Transcript pages 7 to 8, as follows:)We will be starting this trial today, and you've heard some very minor details about this case during the jury selection process. Before we start the trial, I'm going to give you some instructions which will be helpful to those of you who have never served as a juror before in a civil | Introduction to Jury (modified,Transcript pages 7 to 8, as follows:)We will be starting this trial today, and you've heard some very minor details about this case during the jury selection process. Before we start the trial, I'm going to give you some instructions which will be helpful to those of you who have never served as a juror before in a civil |
| lawsuit.2. . | lawsuit.2. PJI 1:3. |
| Openings and Evidence (modified, Transcript pages 8 to 10, as follows:)When I have completed my instructions to you, these attorneys will each make an opening statement. They'll give that statement to you this afternoon, after the lunch period, and in the attorneys' opening statement, each of the attorneys will outline for you what he expects to prove during this trial. The purpose of the attorneys' opening statement is to tell you about his client's claims so that you will have a better understanding of the evidence as the evidence is introduced during the trial. So, therefore, you can think of the attorneys' opening statement as a road map as to where that particular attorney intends to go or you can think of that opening statement as a table of contents to a book. It's just an outline of what that attorney intends to prove during the course of this trial. However, what the attorney says in his opening statement is not evidence. The evidence from which you will base your decision in this case will come from the testimony of witnesses here in this courtroom, or in the form of testimony that is read to you from examinations before trial, we sometimes refer to that as depositions, or in the form of any photographs or documents or any other records and exhibits that are admitted into evidence. Now, the attorney for the plaintiff will make his opening statement first, followed by the attorneys for the defendants. After the opening statements the plaintiff will introduce evidence in support of his claim. Now, normally plaintiff must produce all of his witnesses and complete his entire case before the defendants introduce any evidence. However, there are sometimes cases where the rule may not apply because we'll take a witness out of order. And we will do that in order to accommodate a witness and if we should take a witness out of order, I will advise you prior to the time the witness takes the witness stand. Now, after the plaintiff has completed the introduction of all of his evidence, the defendants may present witnesses and exhibits.Now, if they do so, then the plaintiff may be permitted to offer additional evidence for the purpose of rebutting the defendants' evidence. Now, each witness who takes the witness stand will first be questioned by the attorney that calls that witness to testify before you. That is the direct-examination. And then there will be additional questions by two other attorneys and that will be the cross-examination. And then the attorney that calls the witness to the witness stand will have an opportunity to again question the witness and that's what's known as the redirect-examination and I may permit supplemental questions to be asked of a witness.3. Court advises jury that they will later have right to have testimony read back to them, as follows:Now, I point that out to you at this time because during the course of the trial, your recollection of the testimony of a witness may fail and in the event that should happen, then you have the right, if you think it's appropriate, to ask for a readback of that witness' testimony. And you can ask, therefore, for a readback of the witness' direct testimony, the witness' cross-examination testimony, or the redirect-examination testimony or if you think that you need a readback of the witness' entire testimony you may ask for a readback of the entire testimony of a | Openings and Evidence (modified, Transcript pages 8 to 10, as follows:)When I have completed my instructions to you, these attorneys will each make an opening statement. They'll give that statement to you this afternoon, after the lunch period, and in the attorneys' opening statement, each of the attorneys will outline for you what he expects to prove during this trial. The purpose of the attorneys' opening statement is to tell you about his client's claims so that you will have a better understanding of the evidence as the evidence is introduced during the trial. So, therefore, you can think of the attorneys' opening statement as a road map as to where that particular attorney intends to go or you can think of that opening statement as a table of contents to a book. It's just an outline of what that attorney intends to prove during the course of this trial. However, what the attorney says in his opening statement is not evidence. The evidence from which you will base your decision in this case will come from the testimony of witnesses here in this courtroom, or in the form of testimony that is read to you from examinations before trial, we sometimes refer to that as depositions, or in the form of any photographs or documents or any other records and exhibits that are admitted into evidence. Now, the attorney for the plaintiff will make his opening statement first, followed by the attorneys for the defendants. After the opening statements the plaintiff will introduce evidence in support of his claim. Now, normally plaintiff must produce all of his witnesses and complete his entire case before the defendants introduce any evidence. However, there are sometimes cases where the rule may not apply because we'll take a witness out of order. And we will do that in order to accommodate a witness and if we should take a witness out of order, I will advise you prior to the time the witness takes the witness stand. Now, after the plaintiff has completed the introduction of all of his evidence, the defendants may present witnesses and exhibits.Now, if they do so, then the plaintiff may be permitted to offer additional evidence for the purpose of rebutting the defendants' evidence. Now, each witness who takes the witness stand will first be questioned by the attorney that calls that witness to testify before you. That is the direct-examination. And then there will be additional questions by two other attorneys and that will be the cross-examination. And then the attorney that calls the witness to the witness stand will have an opportunity to again question the witness and that's what's known as the redirect-examination and I may permit supplemental questions to be asked of a witness.3. Court advises jury that they will later have right to have testimony read back to them, as follows:Now, I point that out to you at this time because during the course of the trial, your recollection of the testimony of a witness may fail and in the event that should happen, then you have the right, if you think it's appropriate, to ask for a readback of that witness' testimony. And you can ask, therefore, for a readback of the witness' direct testimony, the witness' cross-examination testimony, or the redirect-examination testimony or if you think that you need a readback of the witness' entire testimony you may ask for a readback of the entire testimony of a |
| witness.4. . | witness.4. PJI 1:4. |
| Objections, Motions, Exceptions (modified, Transcript pages 10 to 11, as follows:)Now, at times during a trial these attorneys will object to a question that is put to a witness. I've never presided over a trial where an attorney has not objected to some question that was put to a witness. And the attorney may also object to the introduction of an exhibit or the attorney may make a motion concerning legal questions that apply to this case. Now, arguments in connection with such objections to motions are sometimes made outside of the jury's presence. However, any ruling upon an attorney's objection or that attorney's motion will be based solely upon the law and, therefore, you are not to conclude from any ruling or from anything that I say during the course of this trial that I favor any party in this lawsuit. These attorneys have a duty to object when there is testimony or other evidence that the attorney believes is not properly admissible. They also have the right to ask that I make rulings of law and to request arguments outside of your hearing. Now, all the questions of law must be decided by me. And you as jurors, you are each judges of the facts and I instruct you that you are not to show any prejudice against an attorney, or his client because an attorney has objected to the admissibility of evidence or because an attorney has asked for a conference outside of your hearing.Author's Comment: The trial court commendably enhances | Objections, Motions, Exceptions (modified, Transcript pages 10 to 11, as follows:)Now, at times during a trial these attorneys will object to a question that is put to a witness. I've never presided over a trial where an attorney has not objected to some question that was put to a witness. And the attorney may also object to the introduction of an exhibit or the attorney may make a motion concerning legal questions that apply to this case. Now, arguments in connection with such objections to motions are sometimes made outside of the jury's presence. However, any ruling upon an attorney's objection or that attorney's motion will be based solely upon the law and, therefore, you are not to conclude from any ruling or from anything that I say during the course of this trial that I favor any party in this lawsuit. These attorneys have a duty to object when there is testimony or other evidence that the attorney believes is not properly admissible. They also have the right to ask that I make rulings of law and to request arguments outside of your hearing. Now, all the questions of law must be decided by me. And you as jurors, you are each judges of the facts and I instruct you that you are not to show any prejudice against an attorney, or his client because an attorney has objected to the admissibility of evidence or because an attorney has asked for a conference outside of your hearing.Author's Comment: The trial court commendably enhances |
| PJI 1:4 |
| to cover requests for sidebar conferences, and emphatically advises the jury not to be prejudiced against an attorney for doing what the attorney is supposed to | to cover requests for sidebar conferences, and emphatically advises the jury not to be prejudiced against an attorney for doing what the attorney is supposed to |
| do.5. . Summations6. . | do.5. PJI 1:5. Summations6. PJI 1:6. |
| Function of Court and Jury (modified, Transcript at page 13, by adding the sentence, “And in this case your verdict will be in the form of answers to questions that I will give to you on a special verdict sheet,” after “The decision you reach will be your verdict;” and by omitting “You are not to ask anyone about the law. You should not consider or accept any advice about the law from anyone else but me.”)Author's Comment: According to the transcript, at page 13, the trial court states an intent to comment on the facts, but this is probably a transcription | Function of Court and Jury (modified, Transcript at page 13, by adding the sentence, “And in this case your verdict will be in the form of answers to questions that I will give to you on a special verdict sheet,” after “The decision you reach will be your verdict;” and by omitting “You are not to ask anyone about the law. You should not consider or accept any advice about the law from anyone else but me.”)Author's Comment: According to the transcript, at page 13, the trial court states an intent to comment on the facts, but this is probably a transcription |
| error.7. . | error.7. PJI 1:6. |
| Consider Only Competent Evidence (modified, Transcript page 14, by adding the following example: “For example — this will not happen during the course of this trial — if a witness is on the witness stand and a question is put to that witness, do you beat your wife and there's an objection to that question and I sustain the objection to the question, then you will disregard that question | Consider Only Competent Evidence (modified, Transcript page 14, by adding the following example: “For example — this will not happen during the course of this trial — if a witness is on the witness stand and a question is put to that witness, do you beat your wife and there's an objection to that question and I sustain the objection to the question, then you will disregard that question |
| completely.”)8. . | completely.”)8. PJI 1:8. |
| Weighing Testimony (modified, Transcript page 15 by substituting the following — “Now, there's no crystal ball by which you can evaluate the testimony of any witness. However, each of you come to this courtroom with your own experience and your own intelligence. Neither I, nor these attorneys want you to leave your intelligence outside of this courtroom or outside of the. jury room” — for the sentence beginning “There is no magical formula . . .” and the following sentence of the pattern charge.]9. Now, the purpose of the rules that I've just outlined for you is to make sure that a just result is reached when you decide this case. For the same purpose I want you to keep in mind several rules that will govern your conduct while you serve as a | Weighing Testimony (modified, Transcript page 15 by substituting the following — “Now, there's no crystal ball by which you can evaluate the testimony of any witness. However, each of you come to this courtroom with your own experience and your own intelligence. Neither I, nor these attorneys want you to leave your intelligence outside of this courtroom or outside of the. jury room” — for the sentence beginning “There is no magical formula . . .” and the following sentence of the pattern charge.]9. Now, the purpose of the rules that I've just outlined for you is to make sure that a just result is reached when you decide this case. For the same purpose I want you to keep in mind several rules that will govern your conduct while you serve as a |
| juror.10. . | juror.10. PJI 1:11. |
| Discussion With Others — Independent Research (modified, Transcript pages 17 to 18, by substituting the following language:)Today each of us has various resources to research any subject or any issue. You know, in fact, many people go to take advantage of the wonderful research libraries that we have in the city, they read primary sources. Other individuals would rather stay at home and use their laptops and go on a computer and search their computer Web sites to conduct their research when they're confronted with issues that involve subject matters that are outside the scope of their own personal knowledge. Now, this is especially true when a person is considering issues that involve technical or professional disciplines. I am instructing you not to employ any such research on any issue presented to you in this lawsuit. In this case the decision that you reach as your verdict must be based solely upon the evidence presented to you by these attorneys. Therefore, while you serve as a juror, you are not to conduct research or ask anyone about medicine or law, nor should you consider the advice about these subjects from | Discussion With Others — Independent Research (modified, Transcript pages 17 to 18, by substituting the following language:)Today each of us has various resources to research any subject or any issue. You know, in fact, many people go to take advantage of the wonderful research libraries that we have in the city, they read primary sources. Other individuals would rather stay at home and use their laptops and go on a computer and search their computer Web sites to conduct their research when they're confronted with issues that involve subject matters that are outside the scope of their own personal knowledge. Now, this is especially true when a person is considering issues that involve technical or professional disciplines. I am instructing you not to employ any such research on any issue presented to you in this lawsuit. In this case the decision that you reach as your verdict must be based solely upon the evidence presented to you by these attorneys. Therefore, while you serve as a juror, you are not to conduct research or ask anyone about medicine or law, nor should you consider the advice about these subjects from |
| anyone.11. . | anyone.11. PJI 1:10. |
| Do Not Visit Scene (modified, Transcript page 18, by substitution of the following language:)Now, this lawsuit concerns an incident that occurred on May 9th, 2003. The incident occurred in the county and State of New York, near the intersection of East 39th Street and Third Avenue. You may be tempted to visit this location. I am instructing you not to do so. The reason why I'm giving you this instruction is because of the passage of time that occurs from the occurrence of an event and the time it gets to you as a juror is substantial and there can be changes that have occurred at that location. And by making a visit to that location, that is, East 39th Street and Third Avenue, without the benefit of any explanation, you could arrive at a mistaken impression about that location. So, therefore, even if you should happen to live near this location, I'm instructing you to please avoid going to it until this case is over.Author's Comment: The trial court's instruction against visiting the scene is stated as a straight mandate unlike the pattern charge, | Do Not Visit Scene (modified, Transcript page 18, by substitution of the following language:)Now, this lawsuit concerns an incident that occurred on May 9th, 2003. The incident occurred in the county and State of New York, near the intersection of East 39th Street and Third Avenue. You may be tempted to visit this location. I am instructing you not to do so. The reason why I'm giving you this instruction is because of the passage of time that occurs from the occurrence of an event and the time it gets to you as a juror is substantial and there can be changes that have occurred at that location. And by making a visit to that location, that is, East 39th Street and Third Avenue, without the benefit of any explanation, you could arrive at a mistaken impression about that location. So, therefore, even if you should happen to live near this location, I'm instructing you to please avoid going to it until this case is over.Author's Comment: The trial court's instruction against visiting the scene is stated as a straight mandate unlike the pattern charge, |
| , | PJI 1:10, |
| which uses the polite “please.” However, it is not clear that a court would have the power to punish a juror for contempt for visiting the scene. Judiciary Law § 753(6) authorizes a court to hold a juror in contempt for unauthorized discussion of the case with non-jurors. See the Comments to the pertinent pattern charges, 1A | which uses the polite “please.” However, it is not clear that a court would have the power to punish a juror for contempt for visiting the scene. Judiciary Law § 753(6) authorizes a court to hold a juror in contempt for unauthorized discussion of the case with non-jurors. See the Comments to the pertinent pattern charges, 1A |
| NY PJI3d 1:12 |
| (Discussion by Others), at 43 (2018), and 1A | (Discussion by Others), at 43 (2018), and 1A |
| NY PJI3d 1:13 |
| (Conversation With Parties or Attorneys), at 44 | (Conversation With Parties or Attorneys), at 44 |
| (2018).12. . | (2018).12. PJI 1:11. |
| Discussion With Others — Independent Research (modified, Transcript pages 18 to 19, by omission of the sentence relating to independent research, inasmuch as this was covered previously (see no. 10 above), and by use of the phrase “I'm also going to instruct you . . ..” in lieu of the more precatory “Please do not discuss . . .” of the pattern | Discussion With Others — Independent Research (modified, Transcript pages 18 to 19, by omission of the sentence relating to independent research, inasmuch as this was covered previously (see no. 10 above), and by use of the phrase “I'm also going to instruct you . . ..” in lieu of the more precatory “Please do not discuss . . .” of the pattern |
| charge.)13. . | charge.)13. PJI 1:12. |
| Discussion by Others (modified, Transcript page 19, by use of the phrase, “I'm also going to instruct you . . .” in lieu of the “Please do not permit . . ..” of the pattern | Discussion by Others (modified, Transcript page 19, by use of the phrase, “I'm also going to instruct you . . .” in lieu of the “Please do not permit . . ..” of the pattern |
| charge.)14. . | charge.)14. PJI 1:13. |
| Conversation With Parties or Attorneys (modified, Transcript pages 19 to 20, by substituting the following language:)Now, the eight of you have been through the jury selection process. And during that period you have formed some impressions concerning Mr. Mallas and Mr. Sules and Mr. Fischkelta. If you were to see them outside of this' courtroom, they would not speak to you, they will not speak to you, and that's not because they're rude. In fact, I've just met them this morning, a little bit before eleven o'clock, and I would say that none of them have impressed me as being rude or discourteous. The reason why they will not speak to you is because they are prohibited from speaking with any juror outside of this courtroom. The same rules will also govern your conduct. I'm instructing you during the time that you serving as a juror you are not to speak with these — with any of these three attorneys. And when you learn the identity of the parties in this case you're not to speak to any parties and when you learn the identity of any witness in this case, do not speak to any of the witnesses. And by this I mean do not speak to them about this case. But do not speak to them at all, even to pass the time of day.15. Conversation with judge (Transcript at page 20) In fact, should I see you outside of this courtroom in the event I speak to you and I say good morning or good afternoon or something like that, I will only be speaking to you because I've mistaken you for an attorney in another matter. So I won't be speaking to you either. And the reason why I'm giving you this instruction is because there is no other way that all the parties in this lawsuit can be assured of the absolute impartiality that they are entitled to expect from the eight of | Conversation With Parties or Attorneys (modified, Transcript pages 19 to 20, by substituting the following language:)Now, the eight of you have been through the jury selection process. And during that period you have formed some impressions concerning Mr. Mallas and Mr. Sules and Mr. Fischkelta. If you were to see them outside of this' courtroom, they would not speak to you, they will not speak to you, and that's not because they're rude. In fact, I've just met them this morning, a little bit before eleven o'clock, and I would say that none of them have impressed me as being rude or discourteous. The reason why they will not speak to you is because they are prohibited from speaking with any juror outside of this courtroom. The same rules will also govern your conduct. I'm instructing you during the time that you serving as a juror you are not to speak with these — with any of these three attorneys. And when you learn the identity of the parties in this case you're not to speak to any parties and when you learn the identity of any witness in this case, do not speak to any of the witnesses. And by this I mean do not speak to them about this case. But do not speak to them at all, even to pass the time of day.15. Conversation with judge (Transcript at page 20) In fact, should I see you outside of this courtroom in the event I speak to you and I say good morning or good afternoon or something like that, I will only be speaking to you because I've mistaken you for an attorney in another matter. So I won't be speaking to you either. And the reason why I'm giving you this instruction is because there is no other way that all the parties in this lawsuit can be assured of the absolute impartiality that they are entitled to expect from the eight of |
| you.16. . | you.16. PJI 1:13A. |
| Alternate Jurors (modified, Transcript pages 20 to 21, by substitution of the following:)Now, we have selected — these attorneys have selected additional jurors and additional jurors were selected to serve because there are times when a regular juror may be prevented from continuing to serve as a result of some emergency; and I mean an emergency, some dire emergency. That means a serious illness, death, unavoidable accident, things of that nature, not because you have a headache or something like that. And the reason why we pick additional jurors is because in the event we only had six jurors, if there was an emergency, then the whole dispute would have to be tried again. And that would be a waste of your tax dollars. It would cause a great deal of inconvenience to the attorneys and the parties to the lawsuit. So, as a result, the additional jurors are required to pay the same careful attention to the trial as any other juror. So that if they're needed, they will be fully familiar with this case. However, the fact that there are additional jurors does not mean that any regular juror is free to excuse herself or himself during this trial. As a duty chosen juror it's your obligation to be available throughout this entire | Alternate Jurors (modified, Transcript pages 20 to 21, by substitution of the following:)Now, we have selected — these attorneys have selected additional jurors and additional jurors were selected to serve because there are times when a regular juror may be prevented from continuing to serve as a result of some emergency; and I mean an emergency, some dire emergency. That means a serious illness, death, unavoidable accident, things of that nature, not because you have a headache or something like that. And the reason why we pick additional jurors is because in the event we only had six jurors, if there was an emergency, then the whole dispute would have to be tried again. And that would be a waste of your tax dollars. It would cause a great deal of inconvenience to the attorneys and the parties to the lawsuit. So, as a result, the additional jurors are required to pay the same careful attention to the trial as any other juror. So that if they're needed, they will be fully familiar with this case. However, the fact that there are additional jurors does not mean that any regular juror is free to excuse herself or himself during this trial. As a duty chosen juror it's your obligation to be available throughout this entire |
| trial.17. . Conclusion18. . | trial.17. PJI 1:14. Conclusion18. PJI 1:103. |
| General Instruction — Supplemental Charge — Note-taking by Jurors [following adjournment] (modified, Transcript pages 25 to 26, by substitution of the following:)Members of the jury, please excuse the delay. About 18 after two, when I took the bench I was advised that one of the jurors had a request with respect to note-taking. I'm going to tell you right now, and as I indicated to you in my instructions, that these attorneys will be presenting technical, medical testimony to you. And should any of you feel the need that you would like to take notes during this trial I will permit you to take notes. I believe that note-taking during the trial will be of some assistance to you in absorbing and analyzing the medical information. However, for those of you will who decide to take notes, I caution you that there are perils in taking notes. You should not permit your note-taking to become a distraction to you during this trial. And there are times, sometimes, when I'm taking notes and something might occur during the trial and there's an objection to a question and sometimes I have to, because I was taking notes, I have to ask for a readback to get the question before I make the ruling on it. So, try not to let your attention be diverted to your notes over the testimony. Your notes are to be used only for the purpose of assisting your personal memory and not for the purpose of attempting to persuade another juror as to how any witness testified. And you are not to rely upon your notes or upon the notes of another juror to evaluate the demeanor or testimony of any witness. Your notes are not superior to your independent recollection and for those jurors who wish not to take notes, you should not be influenced by the fact that another juror has taken notes. And during your deliberations when this matter is given to you for your consideration, . . . [Filed Transcript ends here].C. Case Documents Available on Westlaw1. Jury Instructions (Pre-Trial), | General Instruction — Supplemental Charge — Note-taking by Jurors [following adjournment] (modified, Transcript pages 25 to 26, by substitution of the following:)Members of the jury, please excuse the delay. About 18 after two, when I took the bench I was advised that one of the jurors had a request with respect to note-taking. I'm going to tell you right now, and as I indicated to you in my instructions, that these attorneys will be presenting technical, medical testimony to you. And should any of you feel the need that you would like to take notes during this trial I will permit you to take notes. I believe that note-taking during the trial will be of some assistance to you in absorbing and analyzing the medical information. However, for those of you will who decide to take notes, I caution you that there are perils in taking notes. You should not permit your note-taking to become a distraction to you during this trial. And there are times, sometimes, when I'm taking notes and something might occur during the trial and there's an objection to a question and sometimes I have to, because I was taking notes, I have to ask for a readback to get the question before I make the ruling on it. So, try not to let your attention be diverted to your notes over the testimony. Your notes are to be used only for the purpose of assisting your personal memory and not for the purpose of attempting to persuade another juror as to how any witness testified. And you are not to rely upon your notes or upon the notes of another juror to evaluate the demeanor or testimony of any witness. Your notes are not superior to your independent recollection and for those jurors who wish not to take notes, you should not be influenced by the fact that another juror has taken notes. And during your deliberations when this matter is given to you for your consideration, . . . [Filed Transcript ends here].C. Case Documents Available on Westlaw1. Jury Instructions (Pre-Trial), |
| Verdict | 2005 WL 5553913Verdict |
| and Settlement Summary, | and Settlement Summary, |
| Verdict, | 2005 WL 4130831Verdict, |
| Agreement and Settlement (Special Verdict Sheet), | Agreement and Settlement (Special Verdict Sheet), |
| Trial | 2005 WL 5659883Trial |
| Pleading (Verified Answer to Complaint), 2004 WL 5365986Appellate Decision, Miller v. Tacopina, 34 A.D.3d 254, 824 N.Y.S.2d 43 (1st Dept. 2006).2. Sample Westlaw Query for Trial Court Documents in Similar Cases: Motorcycle and acromioclavic! and arthralgiaD. Research References1.Key | Pleading (Verified Answer to Complaint), 2004 WL 5365986Appellate Decision, Miller v. Tacopina, 34 A.D.3d 254, 824 N.Y.S.2d 43 (1st Dept. 2006).2. Sample Westlaw Query for Trial Court Documents in Similar Cases: Motorcycle and acromioclavic! and arthralgiaD. Research References1.Key |
| Numbers , , 2.Westlaw | NumbersAutomobiles 169, 246, 249.12.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of TortsNew York Vehicle and Traffic Law4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:362§ 4:15 Motor vehicle negligence/Personal injury: rear-end collision/One plaintiff; bus company and driver are defendantsA. BackgroundType of Case: Motor Vehicle Negligence— rear-end collision (two automobiles)Type of Injury: Severe and permanent physical injuriesCase Name: Yun Keyong Anh, Plaintiff, v. Harshil H. Patel, and Joyce Patel, DefendantsCourt: Supreme Court of New York, Queens CountyJudge: Bernice D. Siegel Docket Number: 2587/09Verdict Date: June 10, 2011 (liability); June 14, 2011 (damages)Outcome: Verdict on liability in favor of plaintiff (plaintiff 0%; defendants 100%), but the damages verdict was returned in favor of the defendants. Brief Summary of Facts: Plaintiff alleged he was driving a 2006 Nissan motor vehicle on the Long Island Expressway at or near Main Street, Queens County, when the front of the defendants’ 2007 Honda came into contact with the rear of plaintiff’s vehicle causing severe and permamanent personal injuries as defined by Section 5102(d) of the Insurance Law. After a bifurcated jury trial, the defendants were found 100 percent liable but the verdict on damaes was rendered in favor of the defendants.B. Jury Instructions1. Jury Instructions Requested by the Plaintiff | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of TortsNew York Vehicle and Traffic Law4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:362§ 4:15 Motor vehicle negligence/Personal injury: rear-end collision/One plaintiff; bus company and driver are defendantsA. BackgroundType of Case: Motor Vehicle Negligence— rear-end collision (two automobiles)Type of Injury: Severe and permanent physical injuriesCase Name: Yun Keyong Anh, Plaintiff, v. Harshil H. Patel, and Joyce Patel, DefendantsCourt: Supreme Court of New York, Queens CountyJudge: Bernice D. Siegel Docket Number: 2587/09Verdict Date: June 10, 2011 (liability); June 14, 2011 (damages)Outcome: Verdict on liability in favor of plaintiff (plaintiff 0%; defendants 100%), but the damages verdict was returned in favor of the defendants. Brief Summary of Facts: Plaintiff alleged he was driving a 2006 Nissan motor vehicle on the Long Island Expressway at or near Main Street, Queens County, when the front of the defendants’ 2007 Honda came into contact with the rear of plaintiff’s vehicle causing severe and permamanent personal injuries as defined by Section 5102(d) of the Insurance Law. After a bifurcated jury trial, the defendants were found 100 percent liable but the verdict on damaes was rendered in favor of the defendants.B. Jury Instructions1. Jury Instructions Requested by the Plaintiff |
| 1. | 1.PJI 1:22 |
| Falsus in | Falsus in |
| Uno.2. | Uno.2.PJI 1:23 |
| Burden of | Burden of |
| Proof.3. | Proof.3.PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits.4. | Exhibits.4.PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict.5. | Verdict.5.PJI 1:36 |
| Impartiality. JUN 15 | Impartiality. JUN 15 |
| 20116. | 20116.PJI 1:39 |
| No Inference from | No Inference from |
| Rulings.7. | Rulings.7.PJI 1:91 |
| Interested | Interested |
| Witness.8. | Witness.8.PJI 2:10 |
| Negligence Defined. COUNTY | Negligence Defined. COUNTY |
| CLERK9. Foreseeability.10. | CLERK9.PJI 2:12 Foreseeability.10.PJI 2:26 |
| Statutory Standard- Vehicle and Traffic Law Violation: Sec. 1146 (Drivers to Use Due Care), Sec. 1180 (Speed | Statutory Standard- Vehicle and Traffic Law Violation: Sec. 1146 (Drivers to Use Due Care), Sec. 1180 (Speed |
| Limits)11. | Limits)11.PJI 2:70 |
| Proximate | Proximate |
| Cause.12. | Cause.12.PJI 2:77 |
| MVA-Duty Towards Other | MVA-Duty Towards Other |
| Motorists13. | Motorists13.PJI 2:77.1 |
| MVA- Duty Towards Other Motorists- See What There is to be | MVA- Duty Towards Other Motorists- See What There is to be |
| Seen.14. | Seen.14.PJI 2:82 |
| MVA-Following Too | MVA-Following Too |
| Closely.15. | Closely.15.PJI 2:245 |
| Vicarious Responsibility-Owner of Vehicle, for Acts of Operator.2. Jury Instructions Requested by the Defendants | Vicarious Responsibility-Owner of Vehicle, for Acts of Operator.2. Jury Instructions Requested by the Defendants |
| 1. Introduction2. | 1.PJI 1:20 Introduction2.PJI 1:21 |
| Review Principles | Review Principles |
| Stated3. | Stated3.PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4.PJI 1:23 |
| Burden of | Burden of |
| Proof5. | Proof5.PJI 1:25 |
| Consider only Testimony and | Consider only Testimony and |
| Exhibits6. | Exhibits6.PJI 1:26 |
| Fifth-Sixths | Fifth-Sixths |
| Verdict7. | Verdict7.PJI 1:27 |
| Exclude | Exclude |
| Sympathy8..91 | Sympathy8.PJI 1.91 |
| Interested | Interested |
| Witness9. | Witness9.PJI 2:10 |
| Common Law Standard of Care-Negligence Defined | Common Law Standard of Care-Negligence Defined |
| Generally10. | Generally10.PJI 2:12 |
| Foreseability | Foreseability |
| Defined11. | Defined11.PJI 2:14 |
| Emergency | Emergency |
| Situations12. | Situations12.PJI 2:26 |
| Statutory Standard of Care - Vehicle and Traffic Law Violation: Sec.1202. Stopping, standing or prohibited in specified | Statutory Standard of Care - Vehicle and Traffic Law Violation: Sec.1202. Stopping, standing or prohibited in specified |
| places.13. | places.13.PJI 2:70 |
| Proximate | Proximate |
| Cause14..71 | Cause14.PJI 2.71 |
| Concurrent | Concurrent |
| Causes15. | Causes15.PJI 2:77 |
| Duty Toward Other | Duty Toward Other |
| Motorists16. | Motorists16.PJI 2:77.1 |
| Duty to See What's There to be | Duty to See What's There to be |
| Seen17. | Seen17.PJI 2:75 |
| Comparative FaultC. Case Documents Available on Westlaw1. Verified Complaint, | Comparative FaultC. Case Documents Available on Westlaw1. Verified Complaint, |
| Plaintiff’s | 2009 WL 8498318Plaintiff’s |
| Request to Charge, | Request to Charge, |
| Defendants’ | 2011 WL 5443163Defendants’ |
| Request to Charge, | Request to Charge, |
| Verdict, | 2011 WL 5443165Verdict, 2011 WL 5526513 |
| 2. Sample Westlaw Query for Trial Court Documents in Similar Cases: ‘‘vehic! and negligence’’ and ‘‘rear end’’D. Research References1.Key | 2. Sample Westlaw Query for Trial Court Documents in Similar Cases: ‘‘vehic! and negligence’’ and ‘‘rear end’’D. Research References1.Key |
| Numbers , , , (20) | NumbersAutomobiles 147, 168, 246(14), (20)Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts §§ 7:93, 7:94New York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules§ 4:16 Motor vehicle negligence: no-fault lawA. BackgroundType of Case: Motor vehicle negligence/personal injuryType of Damages: Serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.Case Name: Andres CASTRO, Plaintiff, v, Tung Lien TU and Jay YASEN, Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Thomas D. Raffaele, Justice, Supreme CourtDocket Number: 16229/2011Outcome: Verdict finding defendant Tu negligent and liable, with no negligence on the part of the plaintiff.Date of verdict: August 8, 2013Brief Summary of Factual Allegations: The plaintiff was operating a vehicle on 147th Street at or near its intersection with Union Turnpike when the vehicle operated by defendant Tu and owned by defendant Yasen made illegal contact with the vehicle operated by plaintiff, causing injuries to the plaintiff, specifically, serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.B. Jury Instructions1. Instructions as to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts §§ 7:93, 7:94New York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules§ 4:16 Motor vehicle negligence: no-fault lawA. BackgroundType of Case: Motor vehicle negligence/personal injuryType of Damages: Serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.Case Name: Andres CASTRO, Plaintiff, v, Tung Lien TU and Jay YASEN, Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Thomas D. Raffaele, Justice, Supreme CourtDocket Number: 16229/2011Outcome: Verdict finding defendant Tu negligent and liable, with no negligence on the part of the plaintiff.Date of verdict: August 8, 2013Brief Summary of Factual Allegations: The plaintiff was operating a vehicle on 147th Street at or near its intersection with Union Turnpike when the vehicle operated by defendant Tu and owned by defendant Yasen made illegal contact with the vehicle operated by plaintiff, causing injuries to the plaintiff, specifically, serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.B. Jury Instructions1. Instructions as to |
| Liability Introduction | LiabilityPJI 1:20 IntroductionPJI 1:21 |
| Review Principles | Review Principles |
| Stated | StatedPJI 1:22 |
| Falsus In | Falsus In |
| Uno | UnoPJI 1:60 |
| Burden Of | Burden Of |
| Proof | ProofPJI 1:24 |
| Return To | Return To |
| Courtroom | CourtroomPJI 1:25 |
| Consider Only Testimony And | Consider Only Testimony And |
| Exhibits Impartiality | ExhibitsPJI 1:36 ImpartialityPJI 1:70 |
| Circumstantial | Circumstantial |
| Evidence | EvidencePJI 1:87 |
| General | General |
| Instruction-Interpreters | Instruction-InterpretersPJI 1:91 |
| General Instruction-Interested Witness-Generally Plaintiffs And | General Instruction-Interested Witness-Generally Plaintiffs And |
| Defendants | DefendantsPJI 1:25A |
| Juror's Use Of Professional | Juror's Use Of Professional |
| Expertise | ExpertisePJI 1:94 |
| General Instruction-Use Of Pre-Trial Deposition Upon | General Instruction-Use Of Pre-Trial Deposition Upon |
| Trial | TrialPJI 2:10 |
| Negligence | Negligence |
| Defined Foreseeability | DefinedPJI 2:12 ForeseeabilityPJI 2:70 |
| Proximate | Proximate |
| Cause | CausePJI 2:36 |
| Comparative | Comparative |
| Negligence.36.1 | NegligencePJI 2.36.1 |
| Comparative | Comparative |
| Negligence-Supplemental | Negligence-SupplementalPJI 2:77 |
| Motor Vehicle Accidents-Duty Toward Other | Motor Vehicle Accidents-Duty Toward Other |
| Motorists-General | Motorists-GeneralPJI 2:77.1 |
| Supplemental | Supplemental |
| Instruction | InstructionPJI 2:79 |
| Motor Vehicle Accidents-Collision At | Motor Vehicle Accidents-Collision At |
| Intersection | IntersectionPJI 2:26 |
| Statutory Standard Of Care Vehicle & Traffic Law (Sections 1101, | Statutory Standard Of Care Vehicle & Traffic Law (Sections 1101, |
| , ), | 1110(A), 1111), |
| And | And |
| 2:29-4:03 | 2:29-4:03PJI 1:97 |
| General Instruction-Special | General Instruction-Special |
| Verdict Conclusion | VerdictPJI 1:28 ConclusionPJI 1:29 |
| Alternate | Alternate |
| Jurors | JurorsPJI 1:105 |
| General Instruction-Charge After Verdict2. Instructions as to | General Instruction-Charge After Verdict2. Instructions as to |
| Damages1.. Introduction2.. | Damages1.PJI 1:20. Introduction2.PJI 1:21. |
| Review Principals | Review Principals |
| Stated3.. | Stated3.PJI 1:22. |
| Falsus In | Falsus In |
| Uno4.. | Uno4.PJI 1:23. |
| Burden Of | Burden Of |
| Proof5.. | Proof5.PJI 1:24. |
| Return To | Return To |
| Courtroom6.. | Courtroom6.PJI 1:25. |
| Consider Only Testimony And | Consider Only Testimony And |
| Exhibits7.. Impartiality8.. | Exhibits7.PJI 1:36. Impartiality8.PJI 1:90. |
| General Instruction Medical | General Instruction Medical |
| Evidence9.. | Evidence9.PJI 1:91. |
| General Instruction-Interested | General Instruction-Interested |
| Witness-Generally10.. | Witness-Generally10.PJI 1:25a. |
| Juror's Use Of Professional | Juror's Use Of Professional |
| Expertise11.. | Expertise11.PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict12.. | Verdict12.PJI 1:94. |
| General Instruction-Use Of Pre-Trial Deposition Upon | General Instruction-Use Of Pre-Trial Deposition Upon |
| Trial13.. | Trial13.PJI 1:39. |
| No Inference From | No Inference From |
| Rulings14.. | Rulings14.PJI 2:88E. |
| No-Fault Law-Threshold-Significant Permanent Consequential | No-Fault Law-Threshold-Significant Permanent Consequential |
| Limitation15.. | Limitation15.PJI 2:88F. |
| No-Fault Law-Threshold-Permanent Consequential Limitation Of Use Of Body Organ Or | No-Fault Law-Threshold-Permanent Consequential Limitation Of Use Of Body Organ Or |
| Member16.. | Member16.PJI 2:88G. |
| No-Fault Law Threshold-Non-Permanent Medically Determined Injury That Prevents Performance Of Usual And Customary Daily Activities For 90 Of 180 Days Immediately Subsequent To | No-Fault Law Threshold-Non-Permanent Medically Determined Injury That Prevents Performance Of Usual And Customary Daily Activities For 90 Of 180 Days Immediately Subsequent To |
| Injury17.. Damages-General18.. | Injury17.PJI 2:277. Damages-General18.PJI 2:277A. |
| Damages-Comment By Counsel During | Damages-Comment By Counsel During |
| Opening19.. | Opening19.PJI 2:280. |
| Damages Personal Injury And Pain And | Damages Personal Injury And Pain And |
| Suffering20.. | Suffering20.PJI 2:280.1. |
| Damages Personal Injury And Pain And Suffering | Damages Personal Injury And Pain And Suffering |
| Supplement21.. | Supplement21.PJI 2:280.2. |
| Damages-Personal Injury-(Income | Damages-Personal Injury-(Income |
| Taxes)22.. | Taxes)22.PJI 2:281. |
| Permanence-Life Expectancy Tables Andres | Permanence-Life Expectancy Tables Andres |
| Castro23.. | Castro23.PJI 2:282. |
| Damages-Aggravation Of Pre-Existing | Damages-Aggravation Of Pre-Existing |
| Injury24.. | Injury24.PJI 1:97. |
| General Instruction-Special | General Instruction-Special |
| Verdicts25.. Conclusion26.. | Verdicts25.PJI 1:28. Conclusion26.PJI 1:26. |
| Five Sixth | Five Sixth |
| Verdict27.. | Verdict27.PJI 1:29. |
| Alternate JurorsC. Case Documents available on | Alternate JurorsC. Case Documents available on |
| Westlaw | Westlaw2011 WL 11018923 (N.Y.Sup.) |
| (Trial Pleading), Verified | (Trial Pleading), Verified |
| Complaint | Complaint2013 WL 5565847 (N.Y. Sup.) |
| (Jury Instruction), Post-Trial Jury Charge | (Jury Instruction), Post-Trial Jury Charge |
| (Liability) | (Liability)2013 WL 5565848 (N.Y.Sup.) |
| (Jury Instruction), Post-Trial Jury Charge (Damages)Plaintiff's Request to Charge, Andres CASTRO, Plaintiff, v. Tung Lien TU and Jay Yasen, Defendants., 2013 WL 5565804 (N.Y.Sup.)Verdict Sheet-Liability, Andres CASTRO, Plaintiff, v. Tung Lien TU and Jay Yasen, Defendants., 2013 WL 5563631 (N.Y.Sup.)Sample Westlaw Query for Trial Court documents in Similar Cases: vehic! and negligence and 5102!D. Research References1.Key | (Jury Instruction), Post-Trial Jury Charge (Damages)Plaintiff's Request to Charge, Andres CASTRO, Plaintiff, v. Tung Lien TU and Jay Yasen, Defendants., 2013 WL 5565804 (N.Y.Sup.)Verdict Sheet-Liability, Andres CASTRO, Plaintiff, v. Tung Lien TU and Jay Yasen, Defendants., 2013 WL 5563631 (N.Y.Sup.)Sample Westlaw Query for Trial Court documents in Similar Cases: vehic! and negligence and 5102!D. Research References1.Key |
| Numbers , | NumbersAutomobiles 146, 170Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:27, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:27, |
| § 4:17 Motor | 4:28§ 4:17 Motor |
| vehicle negligence: no-fault law; rear-end collisionA. BackgroundType of Case: Motor vehicle negligence/personal injury; rear-end collisionType of Damages: Serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.Case Name: Jhong NIM KIM, Plaintiff, v. “John DOE,” the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned herein after, and Ji H. Kim, Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Thomas D. RaffaeleDocket Number: 14833/2010Outcome: The jury found that the plaintiff did not sustain a significant limitation of use of body function or system as a result of the accident.Date of verdict: March 13, 2013Brief Summary of Factual Allegations: On December 25, 2008, plaintiff while operating his vehicle at or near the intersection of 162nd Street and 46th Avenue in the County of Queens, when the vehicle operated by defendant Kim and owned by defendant Doe, defendant Kim's employer, while defendant Kim was in the course of such employment, made rear-ended plaintiff's vehicle, causing injuries to the plaintiff, specifically, serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.B. Jury | vehicle negligence: no-fault law; rear-end collisionA. BackgroundType of Case: Motor vehicle negligence/personal injury; rear-end collisionType of Damages: Serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.Case Name: Jhong NIM KIM, Plaintiff, v. “John DOE,” the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned herein after, and Ji H. Kim, Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Thomas D. RaffaeleDocket Number: 14833/2010Outcome: The jury found that the plaintiff did not sustain a significant limitation of use of body function or system as a result of the accident.Date of verdict: March 13, 2013Brief Summary of Factual Allegations: On December 25, 2008, plaintiff while operating his vehicle at or near the intersection of 162nd Street and 46th Avenue in the County of Queens, when the vehicle operated by defendant Kim and owned by defendant Doe, defendant Kim's employer, while defendant Kim was in the course of such employment, made rear-ended plaintiff's vehicle, causing injuries to the plaintiff, specifically, serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.B. Jury |
| Instructions1.. Introduction2.. | Instructions1.PJI 1:20. Introduction2.PJI 1:21. |
| Review Principles | Review Principles |
| Stated3.. | Stated3.PJI 1:22. |
| Falsus In | Falsus In |
| Uno4.. | Uno4.PJI 1:23. |
| Burden Of | Burden Of |
| Proof5.. | Proof5.PJI 1:24. |
| Return To | Return To |
| Courtroom6.. | Courtroom6.PJI 1:25. |
| Consider Only Testimony And | Consider Only Testimony And |
| Exhibits7.. Impartiality8.. | Exhibits7.PJI 1:36. Impartiality8.PJI 1:90. |
| General Instruction Medical | General Instruction Medical |
| Evidence9.. | Evidence9.PJI 1:91. |
| General Instruction-Interested | General Instruction-Interested |
| Witness-Generally10.. | Witness-Generally10.PJI 1:25A. |
| Juror's Use Of Professional | Juror's Use Of Professional |
| Expertise11.. | Expertise11.PJI 1:94. |
| General Instruction-Use Of Pre-Trial Deposition Upon | General Instruction-Use Of Pre-Trial Deposition Upon |
| Trial12.. | Trial12.PJI 1:39. |
| No Inference From | No Inference From |
| Rulings13.. | Rulings13.PJI 2:70. |
| Proximate | Proximate |
| Cause14.. | Cause14.PJI 2:88E. |
| No-Fault Law-Threshold-Significant Permanent Consequential | No-Fault Law-Threshold-Significant Permanent Consequential |
| Limitation15.. | Limitation15.PJI 2:88F. |
| No-Fault Law-Threshold-Permanent Consequential Limitation Of Use Of Body Organ Or | No-Fault Law-Threshold-Permanent Consequential Limitation Of Use Of Body Organ Or |
| Member16.. Damages-General17.. | Member16.PJI 2:277. Damages-General17.PJI 2:277A. |
| Damages-Comment By Counsel During | Damages-Comment By Counsel During |
| Opening18.. | Opening18.PJI 2:280. |
| Damages Personal Injury And Pain And | Damages Personal Injury And Pain And |
| Suffering19.. | Suffering19.PJI 2:280.1. |
| Damages Personal Injury And Pain And Suffering | Damages Personal Injury And Pain And Suffering |
| Supplement20.. | Supplement20.PJI 2:280.2. |
| Damages- Personal Injury-(Income | Damages- Personal Injury-(Income |
| Taxes)21.. | Taxes)21.PJI 2:281. |
| Permanence-Life Expectancy Tables (Jhong Nim Kim 24.8 | Permanence-Life Expectancy Tables (Jhong Nim Kim 24.8 |
| Years)22.. Conclusion23.. | Years)22.PJI 1:28. Conclusion23.PJI 1:97. |
| General Instruction-Special | General Instruction-Special |
| Verdict24.. | Verdict24.PJI 1:29. |
| Alternate JurorsC. Case Documents available on | Alternate JurorsC. Case Documents available on |
| Westlaw2013 | Westlaw•2013 |
| WL 2491117 (N.Y.Sup.) (Verdict, Agreement and Settlement), Verdict | WL 2491117 (N.Y.Sup.) (Verdict, Agreement and Settlement), Verdict |
| Sheet2013 | Sheet•2013 |
| WL 2612797 (N.Y.Sup.) (Jury Instruction), Post-trial Jury | WL 2612797 (N.Y.Sup.) (Jury Instruction), Post-trial Jury |
| Charge—Damages2010 | Charge—Damages•2010 |
| WL 9505688 (N.Y.Sup.) (Trial Pleading), Verified | WL 9505688 (N.Y.Sup.) (Trial Pleading), Verified |
| ComplaintReply | Complaint•Reply |
| Affirmation, Jhong NIM KIM, Plaintiff, v. “John DOE,” the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and JI H. KIM, Defendants., 2012 WL 8305276 | Affirmation, Jhong NIM KIM, Plaintiff, v. “John DOE,” the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and JI H. KIM, Defendants., 2012 WL 8305276 |
| (N.Y.Sup.)Affirmation | (N.Y.Sup.)•Affirmation |
| in Opposition to Defendants' Motion for Summary Judgment, Jhong NIM KIM, Plaintiff, v. “John DOE,” the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and JI H. KIM, Defendants., 2012 WL 8305314 | in Opposition to Defendants' Motion for Summary Judgment, Jhong NIM KIM, Plaintiff, v. “John DOE,” the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and JI H. KIM, Defendants., 2012 WL 8305314 |
| (N.Y.Sup.)MRI | (N.Y.Sup.)•MRI |
| Affirmation of Ayoob khodadadi, M.D., D.A.B.R., Jhong Nim KIM, Plaintiff, v. John DOE, the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and Ji H. Kim, Defendants., 2012 WL 8436478 | Affirmation of Ayoob khodadadi, M.D., D.A.B.R., Jhong Nim KIM, Plaintiff, v. John DOE, the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and Ji H. Kim, Defendants., 2012 WL 8436478 |
| (N.Y.Sup.)Affirmation | (N.Y.Sup.)•Affirmation |
| of Yong S. Tak, M.D., Jhong Nim KIM, Plaintiff, v. John DOE, the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and JI H. Kim, Defendants., 2012 WL 8436480 | of Yong S. Tak, M.D., Jhong Nim KIM, Plaintiff, v. John DOE, the entire name being fictitious, it being intended to designate the operator of the vehicle mentioned hereinafter and JI H. Kim, Defendants., 2012 WL 8436480 |
| (N.Y.Sup.)Final | (N.Y.Sup.)•Final |
| Narrative & Physical Examination of Yong S. Tak, M.D., Jhong Nim KIM, v. John DOE, et al., 2012 WL 8436479 | Narrative & Physical Examination of Yong S. Tak, M.D., Jhong Nim KIM, v. John DOE, et al., 2012 WL 8436479 |
| (N.Y.Sup.)Report | (N.Y.Sup.)•Report |
| or Affidavit of Michael J. Katz, M.D., Jhong Nim KIM, v. John DOE, et al., 2011 WL 10796697 | or Affidavit of Michael J. Katz, M.D., Jhong Nim KIM, v. John DOE, et al., 2011 WL 10796697 |
| (N.Y.Sup.)Report | (N.Y.Sup.)•Report |
| or Affidavit of Jonathan Lerner, M.D., Jhong Nim KIM, v. John DOE, et al., 2010 WL 9513705 | or Affidavit of Jonathan Lerner, M.D., Jhong Nim KIM, v. John DOE, et al., 2010 WL 9513705 |
| (N.Y.Sup.)Order | (N.Y.Sup.)•Order |
| on Motion to Dismiss, Kim v. Doe, 2013 WL 2935881 | on Motion to Dismiss, Kim v. Doe, 2013 WL 2935881 |
| (N.Y.Sup.)Order | (N.Y.Sup.)•Order |
| on Motion to Dismiss, Kim v. Doe, 2012 WL 8418350 (N.Y.Sup.)Sample Westlaw Query for Trial Court documents in Similar Cases: vehic! And negligence and 5102! and “rear-end”D. Research References1.Key | on Motion to Dismiss, Kim v. Doe, 2012 WL 8418350 (N.Y.Sup.)Sample Westlaw Query for Trial Court documents in Similar Cases: vehic! And negligence and 5102! and “rear-end”D. Research References1.Key |
| Numbers , , | NumbersAutomobiles 146, 147, 150Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:25, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:25, |
| § 4:18 Motor | 4:29§ 4:18 Motor |
| vehicle negligence: no-fault law; rear-end collision with stationary disabled car seriously injuring pedestrian offering assistanceA. BackgroundType of Case: Motor vehicle negligence/personal injuryType of Damages: Serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.Case Name: Pedro BERNARD, Plaintiff(s), v. Christopher GREER and Guy B. Green, Defendant(s).Court: New York State Supreme Court, Suffolk CountyJudge: Hon. James M. Catterson, Justice Supreme CourtDocket Number: 11496/10.Outcome: Verdict for plaintiff for $30,000 against driver of vehicle that collided with stationary disabled vehicle; verdict for defendant driver of stationary disabled vehicleDate of verdict: August 7, 2012Brief Summary of Factual Allegations: The plaintiff alleged that at about 2 a.m. she, as a pedestrian, was assisting a disabled vehicle after its driver, defendant Greer, had negligently and recklessly collided with the guardrail Eastbound Belt Parkway at or near its intersection with 171st Street in Queens, and that at that time another vehicle, driven by defendant Green, negligently and recklessly collided with the disabled vehicle, causing it to lurch forward and injure the plaintiff seriously.B. Proposed Jury Instructions1. Jury instructions proposed by | vehicle negligence: no-fault law; rear-end collision with stationary disabled car seriously injuring pedestrian offering assistanceA. BackgroundType of Case: Motor vehicle negligence/personal injuryType of Damages: Serious injury as defined under Section 5102(d) of the Insurance Law of the State of New York, or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law.Case Name: Pedro BERNARD, Plaintiff(s), v. Christopher GREER and Guy B. Green, Defendant(s).Court: New York State Supreme Court, Suffolk CountyJudge: Hon. James M. Catterson, Justice Supreme CourtDocket Number: 11496/10.Outcome: Verdict for plaintiff for $30,000 against driver of vehicle that collided with stationary disabled vehicle; verdict for defendant driver of stationary disabled vehicleDate of verdict: August 7, 2012Brief Summary of Factual Allegations: The plaintiff alleged that at about 2 a.m. she, as a pedestrian, was assisting a disabled vehicle after its driver, defendant Greer, had negligently and recklessly collided with the guardrail Eastbound Belt Parkway at or near its intersection with 171st Street in Queens, and that at that time another vehicle, driven by defendant Green, negligently and recklessly collided with the disabled vehicle, causing it to lurch forward and injure the plaintiff seriously.B. Proposed Jury Instructions1. Jury instructions proposed by |
| plaintiff1. | plaintiff1. PJI 2:41 |
| Comparative Negligence-Emergency Situation-Rescue Of A | Comparative Negligence-Emergency Situation-Rescue Of A |
| Person.2. | Person.2. PJI 2:88E |
| No-Fault Law-Threshold-Significant Limitation Of Use Of Body Function or | No-Fault Law-Threshold-Significant Limitation Of Use Of Body Function or |
| System.3. | System.3. PJI 2:88F |
| No-Fault Law-Threshold-Permanent Consequential Limitation of Use of Body Organ or | No-Fault Law-Threshold-Permanent Consequential Limitation of Use of Body Organ or |
| Member.4. | Member.4. PJI 2:88G |
| No-Fault Law-Threshold-Non-Permanent Medically Determined Injury That Prevents Performance Of Usual and Customary Daily Activities For 90 of 180 Days Immediately Subsequent to Injury2. Jury instructions proposed by defendant Greer (driver of stationary disabled | No-Fault Law-Threshold-Non-Permanent Medically Determined Injury That Prevents Performance Of Usual and Customary Daily Activities For 90 of 180 Days Immediately Subsequent to Injury2. Jury instructions proposed by defendant Greer (driver of stationary disabled |
| vehicle)1. Introduction.2. | vehicle)1. PJI 1:20 Introduction.2. PJI 1:21 |
| Review of Principles | Review of Principles |
| Stated.3. | Stated.3. PJI 1:22 |
| Falsus in | Falsus in |
| Uno.4. | Uno.4. PJI 1:23 |
| Burden Of | Burden Of |
| Proof.5. | Proof.5. PJI 1:24 |
| Return To | Return To |
| Courtroom.6. | Courtroom.6. PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits.7. | Exhibits.7. PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict.8. | Verdict.8. PJI 1:27 |
| Exclude | Exclude |
| Sympathy.9. Conclusion.10. | Sympathy.9. PJI 1:28 Conclusion.10. PJI 1:29 |
| Alternate | Alternate |
| Jurors.11. Impartiality.12. | Jurors.11. PJI 1:36 Impartiality.12. PJI 1:37 |
| Jury | Jury |
| Function.13. | Function.13. PJI 1:38 |
| Court's | Court's |
| Function.14. | Function.14. PJI 1:39 |
| No Inference From | No Inference From |
| Rulings.15. | Rulings.15. PJI 1:40 |
| Consider Only Competent | Consider Only Competent |
| Evidence.16. | Evidence.16. PJI 1:41 |
| Weighing | Weighing |
| Testimony.17. | Testimony.17. PJI 1:55 |
| Admission By A | Admission By A |
| Party18. | Party18. PJI 1:60 |
| Burden Of | Burden Of |
| Proof.19. | Proof.19. PJI 1:90 |
| Expert Witness, if | Expert Witness, if |
| applicable20. | applicable20. PJI 1:91 |
| Interested | Interested |
| Witness.21. | Witness.21. PJI 1:94 |
| Use of Pre-Trial | Use of Pre-Trial |
| Deposition.22. | Deposition.22. PJI: 1:97 |
| Special | Special |
| Verdict23. | Verdict23. PJI 2:10 |
| Common Law Standard of Care — | Common Law Standard of Care — |
| Negligence24. | Negligence24. PJI 2:36 |
| Comparative | Comparative |
| Fault25. | Fault25. PJI 2:70 |
| Proximate | Proximate |
| Cause.26. | Cause.26. PJI 2:77 |
| Duty Toward Other | Duty Toward Other |
| Motorists.27. | Motorists.27. PJI 2:77.1 |
| Duty to See What Should Have Been | Duty to See What Should Have Been |
| Seen28. | Seen28. PJI 2:275 |
| Comparative Fault Between DefendantsC. Case Documents available on Westlaw1.Verified Complaint, | Comparative Fault Between DefendantsC. Case Documents available on Westlaw1.Verified Complaint, |
| Plaintiff's | 2010 WL 9035900Plaintiff's |
| Proposed Jury Charges, 2012 WL 5868167Defendant's Christopher Greer's Proposed Charges on Liability, 2012 WL 5868164Verdict (damages), 2012 WL 5868161Verdict (liability), | Proposed Jury Charges, 2012 WL 5868167Defendant's Christopher Greer's Proposed Charges on Liability, 2012 WL 5868164Verdict (damages), 2012 WL 5868161Verdict (liability), |
| 2.Sample | 2012 WL 58681652.Sample |
| Westlaw Query for Trial Court documents in Similar Cases: “vehic! And negligence”D. Research References1.Key | Westlaw Query for Trial Court documents in Similar Cases: “vehic! And negligence”D. Research References1.Key |
| Numbers , , , | NumbersAutomobiles 159, 160, 173, 201Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:44§ 4:19 Motor vehicle negligence; damages only; ricochet; wrong way on one-way streetA. BackgroundType of Case: Motor vehicle negligence/personal injuryType of Damages: Physical pain and suffering and mental anguish.Case Name: Maria COLELLA, Plaintiff, v. Darrin F. MORAN, Defendant.Court: New York State Supreme Court, Queens CountyJudge: Hon. Janice A. TaylorDocket Number: 240072011Outcome: Verdict for plaintiff for $600,000, consisting of $200,000 for past pain and suffering and loss of enjoyment of life, and $400,000 for future pain and suffering and loss of enjoyment of life. This trial was on damages only; liability was previously decided on summary judgment.Date of verdict: March 15, 2014Brief Summary of Factual Allegations: It was alleged that the plaintiff was driving westbound in the service road alongside Queens Boulevard when her vehicle was struck head-on by the vehicle driven by the defendant, who had made a left turn heading east onto Queens Boulevard, at 59th Street, Queens, where Queens Boulevard was one-way westbound, after defendant's vehicle collided with another westbound vehicle on Queens Boulevard, driven by a non-party.B. Jury instructions proposed by plaintiffGENERAL CHARGES BEFORE | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:44§ 4:19 Motor vehicle negligence; damages only; ricochet; wrong way on one-way streetA. BackgroundType of Case: Motor vehicle negligence/personal injuryType of Damages: Physical pain and suffering and mental anguish.Case Name: Maria COLELLA, Plaintiff, v. Darrin F. MORAN, Defendant.Court: New York State Supreme Court, Queens CountyJudge: Hon. Janice A. TaylorDocket Number: 240072011Outcome: Verdict for plaintiff for $600,000, consisting of $200,000 for past pain and suffering and loss of enjoyment of life, and $400,000 for future pain and suffering and loss of enjoyment of life. This trial was on damages only; liability was previously decided on summary judgment.Date of verdict: March 15, 2014Brief Summary of Factual Allegations: It was alleged that the plaintiff was driving westbound in the service road alongside Queens Boulevard when her vehicle was struck head-on by the vehicle driven by the defendant, who had made a left turn heading east onto Queens Boulevard, at 59th Street, Queens, where Queens Boulevard was one-way westbound, after defendant's vehicle collided with another westbound vehicle on Queens Boulevard, driven by a non-party.B. Jury instructions proposed by plaintiffGENERAL CHARGES BEFORE |
| TRIAL1. | TRIAL1.PJI 1:1 |
| Introduction to | Introduction to |
| Jury2. Parties3. | Jury2.PJI 1:2 Parties3.PJI 1:2B |
| Split | Split |
| Trial-Damages4. | Trial-Damages4.PJI 1:3 |
| Openings and | Openings and |
| Evidence5. | Evidence5.PJI 1:4 |
| Objections, Motions, | Objections, Motions, |
| Exceptions6. Summations7. | Exceptions6.PJI 1:5 Summations7.PJI 1:6 |
| Function of Court and | Function of Court and |
| Jury8. | Jury8.PJI 1:7 |
| Consider Only Competent | Consider Only Competent |
| Evidence9. | Evidence9.PJI 1:8 |
| Weighing | Weighing |
| Testimony10. | Testimony10.PJI 1:9 |
| Conduct During | Conduct During |
| Recess11. | Recess11.PJI 1:11 |
| Discussion With Others—Independent | Discussion With Others—Independent |
| Research12. | Research12.PJI 1:12 |
| Discussion by | Discussion by |
| Others13. | Others13.PJI 1:13 |
| Conversation With Parties or | Conversation With Parties or |
| Attorneys14. | Attorneys14.PJI 1:13 |
| A Alternate | A Alternate |
| Jurors15. | Jurors15.PJI 1:14 |
| ConclusionGENERAL CHARGES BEFORE JURY | ConclusionGENERAL CHARGES BEFORE JURY |
| DELIBERATION Introduction | DELIBERATIONPJI 1:20 IntroductionPJI 1:21 |
| Review Principles | Review Principles |
| Stated | StatedPJI 1:23 |
| Burden of | Burden of |
| Proof | ProofPJI 1:24 |
| Return to | Return to |
| Courtroom | CourtroomPJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits | ExhibitsPJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict | VerdictPJI 1:27 |
| Exclude | Exclude |
| Sympathy | SympathyPJI 1:90 |
| Expert | Expert |
| Witness | WitnessPJI 1:90.4 |
| Compensation of Fact Witness (Dr. Howard Levin) [modified]: In addition to what I just told you about expert witnesses who give you their opinions about certain aspects of the case, when a person like Dr. Howard Levin is called to come to court as a witness to tell you what he did with respect to anything that happened relating to the case and not as an expert, the witness is entitled to receive $15 per day and 23 cents per mile for travel to and from the court for each day he attends. That amount of money may not fully compensate the witness for loss of time from work or from business, so the party who called the witness may, but is not required to, pay the person for the reasonable value of the time away from work or the business lost in coming to and from the court, waiting and testifying, as long as the amount paid is not disproportionately more than what is reasonable compensation from the time away from work or business that the witness lost. A payment is disproportionately more than what is reasonable compensation if it is substantially, or significantly, more than such reasonable compensation. If, on the basis of Howard Levin's testimony about how much he received and the work time or business lost, you conclude that the amount was disproportionally more than what was reasonable for the loss of work time or business, you may take that into consideration in deciding whether the amount paid to Howard Levin influenced what he told you about what he saw, heard and did in connection with what happened in this | Compensation of Fact Witness (Dr. Howard Levin) [modified]: In addition to what I just told you about expert witnesses who give you their opinions about certain aspects of the case, when a person like Dr. Howard Levin is called to come to court as a witness to tell you what he did with respect to anything that happened relating to the case and not as an expert, the witness is entitled to receive $15 per day and 23 cents per mile for travel to and from the court for each day he attends. That amount of money may not fully compensate the witness for loss of time from work or from business, so the party who called the witness may, but is not required to, pay the person for the reasonable value of the time away from work or the business lost in coming to and from the court, waiting and testifying, as long as the amount paid is not disproportionately more than what is reasonable compensation from the time away from work or business that the witness lost. A payment is disproportionately more than what is reasonable compensation if it is substantially, or significantly, more than such reasonable compensation. If, on the basis of Howard Levin's testimony about how much he received and the work time or business lost, you conclude that the amount was disproportionally more than what was reasonable for the loss of work time or business, you may take that into consideration in deciding whether the amount paid to Howard Levin influenced what he told you about what he saw, heard and did in connection with what happened in this |
| case.DAMAGES | case.DAMAGESPJI 2:277 |
| Damages—General (without the first | Damages—General (without the first |
| paragraph) | paragraph)PJI 2:280 |
| Injury and Pain and Suffering (without “If you decide that defendant is liable” and without the last | Injury and Pain and Suffering (without “If you decide that defendant is liable” and without the last |
| sentence) | sentence)PJI 2:280.1 |
| Loss of Enjoyment of Life (without the last sentence of first | Loss of Enjoyment of Life (without the last sentence of first |
| paragraph) | paragraph)PJI 2:283 |
| Increased Susceptibility to | Increased Susceptibility to |
| Injury | InjuryPJI 2:88G |
| No-Fault Law—Serious Injury—Non-Permanent Medically Determined Injury That Prevents Performance of Usual and Customary Daily Activities for 90 of 180 Days Immediately Subsequent to | No-Fault Law—Serious Injury—Non-Permanent Medically Determined Injury That Prevents Performance of Usual and Customary Daily Activities for 90 of 180 Days Immediately Subsequent to |
| Injury | InjuryPJI 2:88F |
| No-Fault Law—Serious Injury—Significant Limitation of Use of Body Function or | No-Fault Law—Serious Injury—Significant Limitation of Use of Body Function or |
| System | SystemPJI 2:88E |
| No-Fault Law—Serious Injury—Permanent Consequential Limitation of Use of Body Organ or | No-Fault Law—Serious Injury—Permanent Consequential Limitation of Use of Body Organ or |
| Member | MemberPJI 2:281 |
| Future—Permanence—Life Expectancy Tables Life expectancy of 29.9 years (DOB XX/XX/1961) modified]: In addition to the awarding damages to compensate the plaintiff for her injuries, you may, but you are not required to, award plaintiff punitive damages if you find that the acts of the defendant that caused injury complained of was wanton and reckless. The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant for wanton and reckless acts and thereby to discourage the defendant from acting in a similar way in the future.An act is wanton and reckless when it demonstrates conscious indifference and utter disregard of its effect upon the health, safety and rights of others. If you find that defendant's acts were not wanton and reckless, you need proceed no further in your deliberations on this issue. On the other hand, if you find that defendant's acts were wanton and reckless, you may award punitive damages.In arriving at your decision as to the amount of punitive damages you should consider the nature and reprehensibility of what defendant did. That would include the character of the wrongdoing: whether the defendant's conduct demonstrated an indifference to, or a reckless disregard of the health, safety or rights of others. However, although you may consider the harm to individuals other than plaintiff in determining the extent to which defendant's conduct was reprehensible, you may not add a specific amount to your punitive damages award to punish defendant for the harm defendant caused to others.The amount of punitive damage that you award must be both reasonable and proportionate to the actual and potential harm suffered by the plaintiff and to the compensatory damages you awarded plaintiff. The reprehensibility of defendant's conduct is an important factor in deciding the amount of punitive damages that would be reasonable and proportionate in view of that the harm suffered by plaintiff and the compensatory damages you have awarded plaintiff.In reporting your verdict, you will state the amount awarded by you as punitive damages.CLOSING | Future—Permanence—Life Expectancy Tables Life expectancy of 29.9 years (DOB XX/XX/1961) modified]: In addition to the awarding damages to compensate the plaintiff for her injuries, you may, but you are not required to, award plaintiff punitive damages if you find that the acts of the defendant that caused injury complained of was wanton and reckless. The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant for wanton and reckless acts and thereby to discourage the defendant from acting in a similar way in the future.An act is wanton and reckless when it demonstrates conscious indifference and utter disregard of its effect upon the health, safety and rights of others. If you find that defendant's acts were not wanton and reckless, you need proceed no further in your deliberations on this issue. On the other hand, if you find that defendant's acts were wanton and reckless, you may award punitive damages.In arriving at your decision as to the amount of punitive damages you should consider the nature and reprehensibility of what defendant did. That would include the character of the wrongdoing: whether the defendant's conduct demonstrated an indifference to, or a reckless disregard of the health, safety or rights of others. However, although you may consider the harm to individuals other than plaintiff in determining the extent to which defendant's conduct was reprehensible, you may not add a specific amount to your punitive damages award to punish defendant for the harm defendant caused to others.The amount of punitive damage that you award must be both reasonable and proportionate to the actual and potential harm suffered by the plaintiff and to the compensatory damages you awarded plaintiff. The reprehensibility of defendant's conduct is an important factor in deciding the amount of punitive damages that would be reasonable and proportionate in view of that the harm suffered by plaintiff and the compensatory damages you have awarded plaintiff.In reporting your verdict, you will state the amount awarded by you as punitive damages.CLOSING |
| INSTRUCTIONS.97 | INSTRUCTIONSPJI 1.97 |
| General Instruction—Special | General Instruction—Special |
| Verdicts | VerdictsPJI 1:29 |
| Alternate | Alternate |
| Jurors | JurorsPJI 1:28 |
| ConclusionC. Case Documents available on Westlaw1.Documents pertaining to this caseVerified Complaint, | ConclusionC. Case Documents available on Westlaw1.Documents pertaining to this caseVerified Complaint, |
| Plaintiff's | 2011 WL 11732808Plaintiff's |
| Memorandum of Law on punitive damages, | Memorandum of Law on punitive damages, |
| Plaintiff's | 2014 WL 1679722Plaintiff's |
| Memorandum of Law on selected evidentiary issues, | Memorandum of Law on selected evidentiary issues, |
| Memorandum | 2014 WL 1679736Memorandum |
| of Law of defendant in opposition to motion in limine, | of Law of defendant in opposition to motion in limine, |
| Memorandum | 2014 WL 1679742Memorandum |
| of Law of defendant in support of motion in limine, | of Law of defendant in support of motion in limine, |
| Memorandum | 2014 WL 1679746Memorandum |
| of Law of defendant opposing introduction of certain medical records, | of Law of defendant opposing introduction of certain medical records, |
| Affirmation | 2014 WL 1679747Affirmation |
| of plaintiff's attorney in opposition to defendant's motion for summary judgment under Insurance L § 5102(d)Affirmation of defendant's attorney in support of motion for summary judgment under Insurance Law Article 51, | of plaintiff's attorney in opposition to defendant's motion for summary judgment under Insurance L § 5102(d)Affirmation of defendant's attorney in support of motion for summary judgment under Insurance Law Article 51, |
| Defendant's | 2013 WL 8354190Defendant's |
| Memorandum of Law in support of motion for summary judgment under Insurance Law Article 51, | Memorandum of Law in support of motion for summary judgment under Insurance Law Article 51, |
| Reply | 2013 WL 8354189Reply |
| affirmation of plaintiff's attorney in support of motion for summary judgment on liability, 2012 WL 10800192Affirmation of plaintiff's attorney in support of motion for summary judgment on liability, | affirmation of plaintiff's attorney in support of motion for summary judgment on liability, 2012 WL 10800192Affirmation of plaintiff's attorney in support of motion for summary judgment on liability, |
| Plaintiff's | 2012 WL 10800193Plaintiff's |
| Request for Jury Charges—Damages, 2014 WL 1679737Affirmation of neurologist, Marina Amitina, M.D., on behalf of plaintiff, 2013 WLL 8537855Affirmation of orthopedic surgeon, Barry Katzman, M.D., on behalf of plaintiff, | Request for Jury Charges—Damages, 2014 WL 1679737Affirmation of neurologist, Marina Amitina, M.D., on behalf of plaintiff, 2013 WLL 8537855Affirmation of orthopedic surgeon, Barry Katzman, M.D., on behalf of plaintiff, |
| Affirmation | 2013 WL 8537856Affirmation |
| of chiropractor, Keith Williams, on behalf of plaintiff, | of chiropractor, Keith Williams, on behalf of plaintiff, |
| Affirmation | 2013 WL 8537853Affirmation |
| of Pervaiz Qureshi, M.D., on behalf of plaintiff, | of Pervaiz Qureshi, M.D., on behalf of plaintiff, |
| Affirmation | 2013 WL 8537857Affirmation |
| of James T. Rigney, M.D., on behalf of plaintiff, | of James T. Rigney, M.D., on behalf of plaintiff, |
| Letter | 2013 WL 8537854Letter |
| of Robert Israel, M.D., on behalf of defendant, | of Robert Israel, M.D., on behalf of defendant, |
| Letter | 2012 WL 10889443Letter |
| of Melissa Sapan Cohn, M.D., on behalf of defendant, | of Melissa Sapan Cohn, M.D., on behalf of defendant, |
| Verdict | 2012 WL 10889444Verdict |
| Sheet, | Sheet, |
| Affirmation | 2014 WL 1692918Affirmation |
| of Marina Amitina, M.D.,neurologist, on behalf of plaintiff, | of Marina Amitina, M.D.,neurologist, on behalf of plaintiff, |
| Trial | 2013 WL 8537855Trial |
| Order of Hon. Janice A. Taylor, setting forth trial and verdict, | Order of Hon. Janice A. Taylor, setting forth trial and verdict, |
| Trial | 2014 WL 1710834Trial |
| Order of Hon. Timothy J. Dufficy, denying defendant's motion with respect to Insurance L § 5102, 2013 WL 8360331Trial Order of Hon. Timothy J. Dufficy, granting plaintiff summary judgment as to liability, 2012 WL 10806915.2.Sample Westlaw Query for Trial Court documents in Similar Cases: “one-way street”D. Research References1.Key | Order of Hon. Timothy J. Dufficy, denying defendant's motion with respect to Insurance L § 5102, 2013 WL 8360331Trial Order of Hon. Timothy J. Dufficy, granting plaintiff summary judgment as to liability, 2012 WL 10806915.2.Sample Westlaw Query for Trial Court documents in Similar Cases: “one-way street”D. Research References1.Key |
| Numbers , , , , , 2.Westlaw | NumbersAutomobiles 14, 147, 151, 153, 155, 2462.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 8:18Appendix 4A Outline of PJI Comments for Negligence/Motor Vehicle AccidentsMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Negligence and Motor Vehicle Accidents, on the following specific | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 8:18Appendix 4A Outline of PJI Comments for Negligence/Motor Vehicle AccidentsMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Negligence and Motor Vehicle Accidents, on the following specific |
| topics:Negligence, GenerallyForeseeabilityVoluntarily | topics:•Negligence, Generally•Foreseeability•Voluntarily |
| Assumed | Assumed |
| DutyStatutory | Duty•Statutory |
| Standard of | Standard of |
| CareSpecial | Care•Special |
| Statutory | Statutory |
| ActionsComparative FaultImplied | Actions•Comparative Fault•Implied |
| Assumption of | Assumption of |
| RiskRes | Risk•Res |
| Ipsa | Ipsa |
| LoquiturProximate CauseMotor | Loquitur•Proximate Cause•Motor |
| Vehicle Accidents — “Rules of the | Vehicle Accidents — “Rules of the |
| road”Motor | road”•Motor |
| Vehicle Accidents — “No-Fault” Insurance LawNegligence, GenerallyComment following | Vehicle Accidents — “No-Fault” Insurance LawNegligence, GenerallyComment following |
| (Vol. | PJI 2:10(Vol. |
| 1A, NY PJI, at 233 (2018))1.General Comment2.Elements of NegligenceA.DutyB.Breach of DutyC.CausationForeseeabilityComment following | 1A, NY PJI, at 233 (2018))1.General Comment2.Elements of NegligenceA.DutyB.Breach of DutyC.CausationForeseeabilityComment following |
| (Vol. | PJI 2:12(Vol. |
| 1A, NY PJI, at 256 (2018))General commentForeseeability as It Relates to DutyA.Contractual PrivityB.Evaluating Foreseeability1.Prior Accidents2.Unforeseeable PlaintiffVoluntarily Assumed DutyComment following | 1A, NY PJI, at 256 (2018))General commentForeseeability as It Relates to DutyA.Contractual PrivityB.Evaluating Foreseeability1.Prior Accidents2.Unforeseeable PlaintiffVoluntarily Assumed DutyComment following |
| (Vol. | PJI 2:24(Vol. |
| 1A, NY PJI, at 297 (2018))General CommentAid Voluntarily RenderedGratuitous PromisesStatutory Standard of CareComment Preceding | 1A, NY PJI, at 297 (2018))General CommentAid Voluntarily RenderedGratuitous PromisesStatutory Standard of CareComment Preceding |
| (Vol. | PJI 2:25(Vol. |
| 1A, NY PJI, at 304 (2018))Introductory StatementA.Violations of Statutes1.Violations which create absolute liability2.Violations which establish negligence3.Violations which are some evidence of negligenceB.Violation of Ordinances, Regulations, or Administrative OrdersSpecial Statutory ActionsComment following | 1A, NY PJI, at 304 (2018))Introductory StatementA.Violations of Statutes1.Violations which create absolute liability2.Violations which establish negligence3.Violations which are some evidence of negligenceB.Violation of Ordinances, Regulations, or Administrative OrdersSpecial Statutory ActionsComment following |
| (Vol. | PJI 2:28(Vol. |
| 1A, NY PJI, at 322 (2018))I.General Obligations Law §§ 11-100 and 11-101A.GenerallyB.Alcohol Beverage Control Law § 65; unlawful sale of alcohol1.Sale to a Visibly Intoxicated Persona.Evidence of Visible Intoxication2.Provision of Alcohol to MinorsC.General Obligations Law § 11-101D.General Obligations Law § 11-100II.Common Law NegligenceIII.CausationIV.DamagesV.ContributionVI.MiscellaneousComparative FaultComment following | 1A, NY PJI, at 322 (2018))I.General Obligations Law §§ 11-100 and 11-101A.GenerallyB.Alcohol Beverage Control Law § 65; unlawful sale of alcohol1.Sale to a Visibly Intoxicated Persona.Evidence of Visible Intoxication2.Provision of Alcohol to MinorsC.General Obligations Law § 11-101D.General Obligations Law § 11-100II.Common Law NegligenceIII.CausationIV.DamagesV.ContributionVI.MiscellaneousComparative FaultComment following |
| (Vol. | PJI 2:36(Vol. |
| 1A, NY PJI, at 346 (2018))Assumption of RiskSerious Violation of Law by PlaintiffPlaintiff's Culpable ConductEffect of General Obligations Law § 15-108Mode of Trial (Bifurcated or Full)Post —Verdict ConsiderationsImplied Assumption of RiskComment following | 1A, NY PJI, at 346 (2018))Assumption of RiskSerious Violation of Law by PlaintiffPlaintiff's Culpable ConductEffect of General Obligations Law § 15-108Mode of Trial (Bifurcated or Full)Post —Verdict ConsiderationsImplied Assumption of RiskComment following |
| (Vol. | PJI 2:55(Vol. |
| 1A, NY PJI, at 376 (2018))I.BackgroundII.Implied assumption of Risk As Distinguished from Express Assumption of Risk, Primary Assumption of Risk and Comparative NegligenceIII.Implied Assumption of RiskIV.Primary Assumption of RiskA.In GeneralB.Plaintiff's Awareness of the RiskC.Risks That Participants Do Not AssumeD.Primary Assumption of Risk As Applied to Supervised Children's ActivitiesE.Primary Assumption of Risk As Applied to Particular Activities1.Football2.Baseball, Softball and Stickball3.Basketball4.Tennis, Racquetball and Handball5.Bicycling6.Cheerleading7.Volleyball8.Soccer, Lacrosse and Rugby9.Skiing, Bobsledding, Tubing, Tobogganing10.Ice and Roller Skating and Hockey11.Boxing and Martial Arts12.Paintball or Splatball13.Gymnastics, Exercise Apparatus and Weightlifting14.Dancing15.Water Sports16.Horses17.Hiking18.Golf19.Bowling20.Jogging, Running and RollerbladingF.Primary Assumption of Risk as Applied to SpectatorsV.Other ConsiderationsRes Ipsa LoquiturComment following | 1A, NY PJI, at 376 (2018))I.BackgroundII.Implied assumption of Risk As Distinguished from Express Assumption of Risk, Primary Assumption of Risk and Comparative NegligenceIII.Implied Assumption of RiskIV.Primary Assumption of RiskA.In GeneralB.Plaintiff's Awareness of the RiskC.Risks That Participants Do Not AssumeD.Primary Assumption of Risk As Applied to Supervised Children's ActivitiesE.Primary Assumption of Risk As Applied to Particular Activities1.Football2.Baseball, Softball and Stickball3.Basketball4.Tennis, Racquetball and Handball5.Bicycling6.Cheerleading7.Volleyball8.Soccer, Lacrosse and Rugby9.Skiing, Bobsledding, Tubing, Tobogganing10.Ice and Roller Skating and Hockey11.Boxing and Martial Arts12.Paintball or Splatball13.Gymnastics, Exercise Apparatus and Weightlifting14.Dancing15.Water Sports16.Horses17.Hiking18.Golf19.Bowling20.Jogging, Running and RollerbladingF.Primary Assumption of Risk as Applied to SpectatorsV.Other ConsiderationsRes Ipsa LoquiturComment following |
| (Vol. | PJI 2:65(Vol. |
| 1A, NY PJI, at 412 (2018))I.Elements of Res Ipsa LoquiturA.Event Generally Does Not Occur Absent NegligenceB.ControlC.Plaintiff's ConductII.Effect of Res Ipsa LoquiturProximate CauseComment following | 1A, NY PJI, at 412 (2018))I.Elements of Res Ipsa LoquiturA.Event Generally Does Not Occur Absent NegligenceB.ControlC.Plaintiff's ConductII.Effect of Res Ipsa LoquiturProximate CauseComment following |
| (Vol. | PJI 2:70(Vol. |
| 1A, NY PJI, at 426 (2018))Proximate Cause DefinedSubstantial FactorEvidence of CausationMotor Vehicle AccidentsComment preceding | 1A, NY PJI, at 426 (2018))Proximate Cause DefinedSubstantial FactorEvidence of CausationMotor Vehicle AccidentsComment preceding |
| (Vol. | PJI 2:75(Vol. |
| 1A, NY PJI, at 451 (2018))I.“Rules of the Road”A.Vehicle and Traffic LawB.Areas to Which “Rules of the Road” ApplyC.Vehicles to Which “Rules of the Road” ApplyD.Violation of “Rules of the Road”E.Local Laws, Ordinances, Regulations and RulesF.Choice of LawII.“No-Fault” Insurance LawA.Persons Affected by the “No-fault” law1.Covered Plaintiff2.“Other Persons”3.Permissible Exclusions4.Use of Vehicle Without Owner's Permission5.“Use or operation”6.Losses During Auto Repair7.Derivative Actions8.Covered DefendantB.Effects of the No-Fault Law on Claims of Covered Persons1.Terminology2.Elements of Basic Economic Loss3.First Party Benefits4.Tort Recovery for Economic Loss5.Serious Injurya.Accrual of Claimb.Other ConsiderationsSerious Injury Under the No-Fault LawComment preceding | 1A, NY PJI, at 451 (2018))I.“Rules of the Road”A.Vehicle and Traffic LawB.Areas to Which “Rules of the Road” ApplyC.Vehicles to Which “Rules of the Road” ApplyD.Violation of “Rules of the Road”E.Local Laws, Ordinances, Regulations and RulesF.Choice of LawII.“No-Fault” Insurance LawA.Persons Affected by the “No-fault” law1.Covered Plaintiff2.“Other Persons”3.Permissible Exclusions4.Use of Vehicle Without Owner's Permission5.“Use or operation”6.Losses During Auto Repair7.Derivative Actions8.Covered DefendantB.Effects of the No-Fault Law on Claims of Covered Persons1.Terminology2.Elements of Basic Economic Loss3.First Party Benefits4.Tort Recovery for Economic Loss5.Serious Injurya.Accrual of Claimb.Other ConsiderationsSerious Injury Under the No-Fault LawComment preceding |
| -G(Vol. | PJI 2:88A-G(Vol. |
| 1A, NY PJI, at 540 (2018))A.Nature of the Serious Injury ElementB.Requirement of Objective Medical Evidence1. Objective Evidence of Inability to Perform Usual and Customary Activities During 90/180 Period2. Objective Medical Evidence of Permanent Consequential and Significant Limitation of Usea.Objective Evidence of Limitations Arising from Spinal Injury3. Timing of Medical Examination4. Termination of and Gaps in TreatmentC.CausationD.Summary Judgment Motion Practice1.Moving Defendant's Burden of Proof2.Plaintiff's Burden in Opposing Summary Judgment3.Need for Sworn Expert StatementsE.Jury's Role in Determining Serious Injury* * *Serious Injury Under the No-Fault Law Significant Limitation of Use of Body Function or System Comment following | 1A, NY PJI, at 540 (2018))A.Nature of the Serious Injury ElementB.Requirement of Objective Medical Evidence1. Objective Evidence of Inability to Perform Usual and Customary Activities During 90/180 Period2. Objective Medical Evidence of Permanent Consequential and Significant Limitation of Usea.Objective Evidence of Limitations Arising from Spinal Injury3. Timing of Medical Examination4. Termination of and Gaps in TreatmentC.CausationD.Summary Judgment Motion Practice1.Moving Defendant's Burden of Proof2.Plaintiff's Burden in Opposing Summary Judgment3.Need for Sworn Expert StatementsE.Jury's Role in Determining Serious Injury* * *Serious Injury Under the No-Fault Law Significant Limitation of Use of Body Function or System Comment following |
| PJI 2:88F |
| (Vol. 1A, NY PJI, at 572 (2018))I.Significant Limitation In GeneralII.Limitations Resulting from PainChapter 5MalpracticeA. Finding The Applicable Law and Instructions§ 5:1NY PJI TablesB. Illustrative Cases§ 5:2Medical malpractice/Stroke/One plaintiff, four defendants (three doctors, one hospital)§ 5:3Medical malpractice/Failure to detect lymphoma; wrongful death/One plaintiff, one defendant§ 5:4Medical malpractice/Knee ligament deterioration/One plaintiff, one individual and one corporate defendant§ 5:5Medical malpractice/Secondary bleeding from tonsillectomy/Two plaintiffs, four defendants§ 5:6Medical malpractice/Bladder injury, infertility, systemic infection, myofascitis, emotional distress/One plaintiff, two defendants (doctor and hospital)§ 5:7Medical malpractice/Nerve injury; quadriceps atrophy; myofascitis/One plaintiff, five defendants (three doctors, one professional corporation, and one hospital)§ 5:8Medical malpractice/Wrist fracture (improper healing)/One plaintiff; two defendants§ 5:9Medical malpractice/Faulty rhinoplasty/One plaintiff, one defendant§ 5:10Medical malpractice/Failure to diagnose colonic perforation secondary to diverticulitis; wrongful death/One plaintiff, three defendants§ 5:11Medical malpractice/Failure to diagnose aortic dissection in descending aorta; wrongful death/One plaintiff, three defendants§ 5:12Medical malpractice/Unspecified injuries; failure to properly restrain patient at hospital/One plaintiff; one defendant§ 5:13Medical malpractice/Injuries at birth; Erb's palsy/Two plaintiffs; three defendants§ 5:14Medical malpractice/Heart attack; wrongful death/One plaintiff, one defendant§ 5:15Medical malpractice/ Negligent surgery (enterectomy); wrongful death/ One plaintiff, four defendants§ 5:16Medical malpractice/Eye injury; one plaintiff, multiple defendants§ 5:17Medical malpractice/ Dilation and evacuation surgery/two plaintiffs, four defendants§ 5:18Medical malpractice/Negligent insertion of feeding tube§ 5:19Medical malpactice/Orthopedic surgery/ruptured biceps tendon/delay compounded by negligent surgery§ 5:20Medical malpractice/angioplasty; X-ray radiation exposure; one plaintiff, multiple defendants§ 5:21Medical malpractice/negligent treatment, medication overdose, failure to diagnose and delay in transfer of patient to intensive care unit; two plaintiffs, multiple defendants§ 5:22Medical malpractice/wrongful death/pre-natal treatment§ 5:23Medical malpractice/ob/gyn/stillbornAppendix 5A. Outline of PJI Comments for MalpracticeKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 5:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Malpractice, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added:Malpractice | (Vol. 1A, NY PJI, at 572 (2018))I.Significant Limitation In GeneralII.Limitations Resulting from PainChapter 5MalpracticeA. Finding The Applicable Law and Instructions§ 5:1NY PJI TablesB. Illustrative Cases§ 5:2Medical malpractice/Stroke/One plaintiff, four defendants (three doctors, one hospital)§ 5:3Medical malpractice/Failure to detect lymphoma; wrongful death/One plaintiff, one defendant§ 5:4Medical malpractice/Knee ligament deterioration/One plaintiff, one individual and one corporate defendant§ 5:5Medical malpractice/Secondary bleeding from tonsillectomy/Two plaintiffs, four defendants§ 5:6Medical malpractice/Bladder injury, infertility, systemic infection, myofascitis, emotional distress/One plaintiff, two defendants (doctor and hospital)§ 5:7Medical malpractice/Nerve injury; quadriceps atrophy; myofascitis/One plaintiff, five defendants (three doctors, one professional corporation, and one hospital)§ 5:8Medical malpractice/Wrist fracture (improper healing)/One plaintiff; two defendants§ 5:9Medical malpractice/Faulty rhinoplasty/One plaintiff, one defendant§ 5:10Medical malpractice/Failure to diagnose colonic perforation secondary to diverticulitis; wrongful death/One plaintiff, three defendants§ 5:11Medical malpractice/Failure to diagnose aortic dissection in descending aorta; wrongful death/One plaintiff, three defendants§ 5:12Medical malpractice/Unspecified injuries; failure to properly restrain patient at hospital/One plaintiff; one defendant§ 5:13Medical malpractice/Injuries at birth; Erb's palsy/Two plaintiffs; three defendants§ 5:14Medical malpractice/Heart attack; wrongful death/One plaintiff, one defendant§ 5:15Medical malpractice/ Negligent surgery (enterectomy); wrongful death/ One plaintiff, four defendants§ 5:16Medical malpractice/Eye injury; one plaintiff, multiple defendants§ 5:17Medical malpractice/ Dilation and evacuation surgery/two plaintiffs, four defendants§ 5:18Medical malpractice/Negligent insertion of feeding tube§ 5:19Medical malpactice/Orthopedic surgery/ruptured biceps tendon/delay compounded by negligent surgery§ 5:20Medical malpractice/angioplasty; X-ray radiation exposure; one plaintiff, multiple defendants§ 5:21Medical malpractice/negligent treatment, medication overdose, failure to diagnose and delay in transfer of patient to intensive care unit; two plaintiffs, multiple defendants§ 5:22Medical malpractice/wrongful death/pre-natal treatment§ 5:23Medical malpractice/ob/gyn/stillbornAppendix 5A. Outline of PJI Comments for MalpracticeKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 5:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Malpractice, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added:Malpractice |
| [ | [PJI 2:149 |
| to | to |
| ](Volume | 2:154](Volume |
| 1B)Summary of Contents[“****” = see Table of Contents for detailed PJI Comment]A.Introductory Statement on Statute of Limitations [preceding 2:149] ****B.Continuous Treatment [2:149]C.Physician [2:150] ****1.Informed Consent [2:150A]D.Hospital [2:151] ****E.Damages1. Itemized Verdict (Applicable in actions commenced before July 26, 2003) (Medical, Dental, Podiatric) — [2:151A(1)]2. Itemized Verdict (Applicable in actions other than wrongful death actions commenced on or after July 26, 2003) (Medical, Dental, Podiatric) — [2:151A(2)]3. Income Taxation of Lost Earnings [2:151B]4. Actions subject to EPTL 5-4.3 [2:151B.1]5. Both survival and wrongful death claims asserted [2:151B.2]F.Fraudulent Concealment of Act of Malpractice [2:151C]G.Attorney Malpractice [2:152] ****H.Architect Malpractice [2:153]I.Accountant Malpractice [2:154]Historical Revision Notes:In 2003, | 1B)Summary of Contents[“****” = see Table of Contents for detailed PJI Comment]A.Introductory Statement on Statute of Limitations [preceding 2:149] ****B.Continuous Treatment [2:149]C.Physician [2:150] ****1.Informed Consent [2:150A]D.Hospital [2:151] ****E.Damages1. Itemized Verdict (Applicable in actions commenced before July 26, 2003) (Medical, Dental, Podiatric) — [2:151A(1)]2. Itemized Verdict (Applicable in actions other than wrongful death actions commenced on or after July 26, 2003) (Medical, Dental, Podiatric) — [2:151A(2)]3. Income Taxation of Lost Earnings [2:151B]4. Actions subject to EPTL 5-4.3 [2:151B.1]5. Both survival and wrongful death claims asserted [2:151B.2]F.Fraudulent Concealment of Act of Malpractice [2:151C]G.Attorney Malpractice [2:152] ****H.Architect Malpractice [2:153]I.Accountant Malpractice [2:154]Historical Revision Notes:In 2003, |
| PJI 2:151 |
| was revised.In 2006, | was revised.In 2006, |
| PJI 2:151A(1) |
| and | and |
| PJI 2:151A(2) |
| were added.In 2009, | were added.In 2009, |
| PJI 2:151B |
| and | and |
| 2:151C |
| were revised, and | were revised, and |
| .1 | PJI 2:151B.1 |
| and 2:151B.2 were added.In 2010, | and 2:151B.2 were added.In 2010, |
| PJI 2:150A |
| was revised.In 2011, | was revised.In 2011, |
| PJI 2:150 |
| and | and |
| 2:152 |
| were revised.B. Illustrative Cases§ 5:2 Medical malpractice/Stroke/One plaintiff, four defendants (three doctors, one hospital)A. BackgroundType of Case: Medical MalpracticeType of Injury: Stroke; hemiparesis of the right side of body.Case Name: Kevin Smith v. Dr. Sophia Au; Noah Robbins, M.D.; Marc Roger Burns, M.D.; and Montefiore Medical CenterCourt: Supreme Court of New York, Bronx CountyJudge: Stanley B. GreenDocket Number: 22183/99Verdict Date: February 27, 2003Outcome: Award of $16,315,000. Court set aside jury's verdict.On appeal, Appellate Division reinstated verdict and remanded.On remand, Judge Green set aside award to extent of directing new trial on issues of damages unless plaintiff stipulated to reduce jury's awards for future pain and suffering from $5,000,000 to $3,000,000, for past lost earnings from $202,057 to $150,000, for future loss of earnings from $2,011,955 to $1,150,000, for future home health aid from $7,000,000 to $4,000,000, for future medical care from $165,000 to $100,000, for future physical/occupational therapy from $245,000 to $90,000, and for speech therapy from $40,000 to $25,000, and vacated jury's award of $365,000 for psychological therapy.On second appeal, Appellate Division reinstated jury's damage awards for future pain and suffering, past lost earnings, future loss of earnings, future medical care, future physical/occupational therapy, speech therapy and psychological therapy, and increased the conditional award for future home health aid to $4,500,000, and otherwise affirmed, without costs. The Appellate Division remanded for a new trial solely as to damages for future home health aid, unless plaintiff, within 30 days of service of a copy of Appellate Division's order, stipulated to $4,500,000 for the award for future home health aid and to entry of an amended judgment.Brief Summary of Facts: Plaintiff with a history of rheumatic fever and rheumatic heart disease sought treatment of hip and joint pain at Montefiore Medical Center. Defendants Au and Robbins performed blood work, which produced abnormal results. No blood cultures or follow-up studies were performed, but Smith was referred to Defendant Burns, a rheumatologist. Burns ordered therapy sessions.In October 1998, Plaintiff suffered a stroke. He was subsequently diagnosed with sub-acute endocarditis.Plaintiff claims that his stroke was caused by the sub-acute endocarditis. He contends that Defendants Au and Robbins failed to order blood cultures and an echocardiogram, and that the tests would have revealed the endocarditis in time to prevent the stroke. Plaintiff also contends that Defendant Burns should have admitted him to a hospital.Defendants contend that their care was appropriate, and that Plaintiff did not develop endocarditis until after his stroke. They also claimed that Plaintiff's symptoms and blood-work results did not warrant further tests.Plaintiff underwent two years of extensive physical, speech and occupational therapy. He discontinued the treatment after claiming that he could no longer afford it. He has not worked since the stroke.B. Jury Instructions Given by the | were revised.B. Illustrative Cases§ 5:2 Medical malpractice/Stroke/One plaintiff, four defendants (three doctors, one hospital)A. BackgroundType of Case: Medical MalpracticeType of Injury: Stroke; hemiparesis of the right side of body.Case Name: Kevin Smith v. Dr. Sophia Au; Noah Robbins, M.D.; Marc Roger Burns, M.D.; and Montefiore Medical CenterCourt: Supreme Court of New York, Bronx CountyJudge: Stanley B. GreenDocket Number: 22183/99Verdict Date: February 27, 2003Outcome: Award of $16,315,000. Court set aside jury's verdict.On appeal, Appellate Division reinstated verdict and remanded.On remand, Judge Green set aside award to extent of directing new trial on issues of damages unless plaintiff stipulated to reduce jury's awards for future pain and suffering from $5,000,000 to $3,000,000, for past lost earnings from $202,057 to $150,000, for future loss of earnings from $2,011,955 to $1,150,000, for future home health aid from $7,000,000 to $4,000,000, for future medical care from $165,000 to $100,000, for future physical/occupational therapy from $245,000 to $90,000, and for speech therapy from $40,000 to $25,000, and vacated jury's award of $365,000 for psychological therapy.On second appeal, Appellate Division reinstated jury's damage awards for future pain and suffering, past lost earnings, future loss of earnings, future medical care, future physical/occupational therapy, speech therapy and psychological therapy, and increased the conditional award for future home health aid to $4,500,000, and otherwise affirmed, without costs. The Appellate Division remanded for a new trial solely as to damages for future home health aid, unless plaintiff, within 30 days of service of a copy of Appellate Division's order, stipulated to $4,500,000 for the award for future home health aid and to entry of an amended judgment.Brief Summary of Facts: Plaintiff with a history of rheumatic fever and rheumatic heart disease sought treatment of hip and joint pain at Montefiore Medical Center. Defendants Au and Robbins performed blood work, which produced abnormal results. No blood cultures or follow-up studies were performed, but Smith was referred to Defendant Burns, a rheumatologist. Burns ordered therapy sessions.In October 1998, Plaintiff suffered a stroke. He was subsequently diagnosed with sub-acute endocarditis.Plaintiff claims that his stroke was caused by the sub-acute endocarditis. He contends that Defendants Au and Robbins failed to order blood cultures and an echocardiogram, and that the tests would have revealed the endocarditis in time to prevent the stroke. Plaintiff also contends that Defendant Burns should have admitted him to a hospital.Defendants contend that their care was appropriate, and that Plaintiff did not develop endocarditis until after his stroke. They also claimed that Plaintiff's symptoms and blood-work results did not warrant further tests.Plaintiff underwent two years of extensive physical, speech and occupational therapy. He discontinued the treatment after claiming that he could no longer afford it. He has not worked since the stroke.B. Jury Instructions Given by the |
| Court1. . | Court1. PJI 1:20. |
| Introduction (Transcript page 1541—The court offers variation:)All right. So now we, as you all know, reached that point in the trial where I'm going to tell you about the principles of law that you have to apply to the case. Now, and they're not complicated, I don't think, and they're really straightforward, but they have to be told to you so you're all operating under the same rules and principles of | Introduction (Transcript page 1541—The court offers variation:)All right. So now we, as you all know, reached that point in the trial where I'm going to tell you about the principles of law that you have to apply to the case. Now, and they're not complicated, I don't think, and they're really straightforward, but they have to be told to you so you're all operating under the same rules and principles of |
| law.2. . | law.2. PJI 1:21. |
| Review Principles Stated (Transcript page 1541—The court only includes the beginning of the pattern instruction and returns to review principles at instruction 5:)Remember I told you a few things in the beginning, you're bound to accept the law as I tell you, and the source of the law, you decide the facts and the outcome of the | Review Principles Stated (Transcript page 1541—The court only includes the beginning of the pattern instruction and returns to review principles at instruction 5:)Remember I told you a few things in the beginning, you're bound to accept the law as I tell you, and the source of the law, you decide the facts and the outcome of the |
| case.3. . | case.3. PJI 1:7. |
| Consider Only Competent Evidence (Transcript page 1541—The court leaves out the first sentence, “As sole judges of facts. . .” The court uses much of its own language:)During the course of the trial, obviously I made rulings, by way of objections to motions, objections to questions as I told you would come up. You're not to draw any inferences from the rulings I made, that I favor one side or the other. You're not to count up the number of times I ruled in favor of one side or the other. Has nothing to do with it, the rulings are based solely upon my understanding of the law.If a question was asked but not answered, you should not speculate as to what the answer might have been. It's the question coupled with the answer that constitutes evidence.4. (Transcript page 1542—No corresponding pattern instruction, regarding these instructions:)And the first part of my instructions to you will be relative to some of the issues about credibility, and other general principles and rules that apply to all cases. The second part of the charge will talk about the liability issues that will be presented to you. And the last part of the charge will talk about the damage issues that are presented to you. And we give you all of these at one time, we don't bring you back and forth after each question, we give you all of the law at one time so you can have it as you consider the questions in the order in which they are presented on the verdict | Consider Only Competent Evidence (Transcript page 1541—The court leaves out the first sentence, “As sole judges of facts. . .” The court uses much of its own language:)During the course of the trial, obviously I made rulings, by way of objections to motions, objections to questions as I told you would come up. You're not to draw any inferences from the rulings I made, that I favor one side or the other. You're not to count up the number of times I ruled in favor of one side or the other. Has nothing to do with it, the rulings are based solely upon my understanding of the law.If a question was asked but not answered, you should not speculate as to what the answer might have been. It's the question coupled with the answer that constitutes evidence.4. (Transcript page 1542—No corresponding pattern instruction, regarding these instructions:)And the first part of my instructions to you will be relative to some of the issues about credibility, and other general principles and rules that apply to all cases. The second part of the charge will talk about the liability issues that will be presented to you. And the last part of the charge will talk about the damage issues that are presented to you. And we give you all of these at one time, we don't bring you back and forth after each question, we give you all of the law at one time so you can have it as you consider the questions in the order in which they are presented on the verdict |
| sheet.5. . | sheet.5. PJI 1:41. |
| Weighing Testimony (Transcript pages 1542 to 1544—The court's discussion varies considerably from the pattern instruction:)You have to decide which of the witnesses you find credible, what portions of their testimony you find credible. . .. How do you decide which of the witnesses were credible, reliable, truthful, honest, mistaken? They're all people you never saw before, you never heard of before, and you had a rather limited opportunity to observe each one individually. Well, some of the tests that you might use, and the tests I give you are not limiting, they're just suggestions, doesn't mean you have to abide by them or use them and it doesn't mean that you shouldn't apply any other tests you think of that you might apply in important matters in your own personal life.So did what the witness say make sense, is it reasonable, is it logical, is it based upon the—is it consistent with the other evidence in the case, is it consistent, is the testimony of a witness consistent with what he or she may have said on a prior occasion. You observed the witnesses as they testified in court; you may consider their demeanor and the manner in which they responded to questions in determining their credibility.You may consider any interests or bias or hostility that's been demonstrated in the course of this trial in considering the credibility and reliability of the witness. Is what the witness said probable or improbable, reasonable or unreasonable. You make these decisions, by the way, in light of all of the evidence in the case.That's one of the reasons we told you wait till the end of the case before you decide who you believe or what you believe. Remember I said after the first witness don't decide whether you believe that witness or not. Second and so on. You have to make the decisions with respect to the credibility and reliability of the witnesses in the context of all of the evidence in the case.6. (Transcript page 1544—No corresponding pattern instruction, regarding credibility of documents:)You not only have to make decisions about reliability about the witnesses, but there are many documents or several documents in evidence. If you choose to look at those and review those, you have to consider also their credibility. Their reliability. Just merely because something is written down doesn't make it so. And this I tell people in every case. So you have to determine the credibility and reliability of all of the evidence in the case, whether it's testimony of witnesses or documents in | Weighing Testimony (Transcript pages 1542 to 1544—The court's discussion varies considerably from the pattern instruction:)You have to decide which of the witnesses you find credible, what portions of their testimony you find credible. . .. How do you decide which of the witnesses were credible, reliable, truthful, honest, mistaken? They're all people you never saw before, you never heard of before, and you had a rather limited opportunity to observe each one individually. Well, some of the tests that you might use, and the tests I give you are not limiting, they're just suggestions, doesn't mean you have to abide by them or use them and it doesn't mean that you shouldn't apply any other tests you think of that you might apply in important matters in your own personal life.So did what the witness say make sense, is it reasonable, is it logical, is it based upon the—is it consistent with the other evidence in the case, is it consistent, is the testimony of a witness consistent with what he or she may have said on a prior occasion. You observed the witnesses as they testified in court; you may consider their demeanor and the manner in which they responded to questions in determining their credibility.You may consider any interests or bias or hostility that's been demonstrated in the course of this trial in considering the credibility and reliability of the witness. Is what the witness said probable or improbable, reasonable or unreasonable. You make these decisions, by the way, in light of all of the evidence in the case.That's one of the reasons we told you wait till the end of the case before you decide who you believe or what you believe. Remember I said after the first witness don't decide whether you believe that witness or not. Second and so on. You have to make the decisions with respect to the credibility and reliability of the witnesses in the context of all of the evidence in the case.6. (Transcript page 1544—No corresponding pattern instruction, regarding credibility of documents:)You not only have to make decisions about reliability about the witnesses, but there are many documents or several documents in evidence. If you choose to look at those and review those, you have to consider also their credibility. Their reliability. Just merely because something is written down doesn't make it so. And this I tell people in every case. So you have to determine the credibility and reliability of all of the evidence in the case, whether it's testimony of witnesses or documents in |
| evidence.7. . | evidence.7. PJI 1:91. |
| General Instruction—Interested Witness—Generally (Transcript page 1544 to 1545—The court elaborates on the pattern instruction:)I tell you as a matter of law both the plaintiff and the defendants are interested witnesses. And for obvious reasons. They have an obvious interest in the outcome of the case. Does that mean that you should disregard their testimony merely because they're a party? Well, obviously not because if that were the case, there would be no reason for them to testify. But you may consider their interest in the case, if you think it appropriate, in determining their credibility or their reliability. Again, that's just one of the several tests that you may use to determine the credibility of a | General Instruction—Interested Witness—Generally (Transcript page 1544 to 1545—The court elaborates on the pattern instruction:)I tell you as a matter of law both the plaintiff and the defendants are interested witnesses. And for obvious reasons. They have an obvious interest in the outcome of the case. Does that mean that you should disregard their testimony merely because they're a party? Well, obviously not because if that were the case, there would be no reason for them to testify. But you may consider their interest in the case, if you think it appropriate, in determining their credibility or their reliability. Again, that's just one of the several tests that you may use to determine the credibility of a |
| witness.8. . | witness.8. PJI 1:22. |
| Falsus in Uno (Transcript page 1045—The court uses its own language, elaborating on the pattern instruction:)There is a principle that if a witness testifies falsely about a material or important or significant fact, you may disregard that witness' testimony completely, on the theory that if he or she testifies falsely about one thing, he or she may be testifying falsely about everything. But that principle does not require that you reject all of that witness' testimony. After considering all of the evidence in the case, you may either reject all of the witness' testimony, or accept all of the witness' testimony, or reject so much of that witness' testimony that you think is not reliable and accept so much of that witness' testimony as you think is reliable. Again, one other factor for you to consider along with the other things that I have mentioned to | Falsus in Uno (Transcript page 1045—The court uses its own language, elaborating on the pattern instruction:)There is a principle that if a witness testifies falsely about a material or important or significant fact, you may disregard that witness' testimony completely, on the theory that if he or she testifies falsely about one thing, he or she may be testifying falsely about everything. But that principle does not require that you reject all of that witness' testimony. After considering all of the evidence in the case, you may either reject all of the witness' testimony, or accept all of the witness' testimony, or reject so much of that witness' testimony that you think is not reliable and accept so much of that witness' testimony as you think is reliable. Again, one other factor for you to consider along with the other things that I have mentioned to |
| you.9. . | you.9. PJI 1:90. |
| General Instruction—Expert Witness (Transcript pages 1546 to 1547—The court elaborates on the pattern instruction, in its own language, omitting any mention of what experts appeared:)Now, you know that in this case because of the nature of the case, there are many experts, doctors, economists and others who testified here.Now, what's the different between the testimony of an expert and a non-expert? Normally, a witness is allowed to testify to that which he or she saw or heard or tasted or smelled or touched. That which they know by their own senses. But in a case involving matters beyond the knowledge of us normal souls, we allow so-called experts to testify as to their opinions. And we do that based upon their experience, expertise and training.Now, you heard the testimony of the various experts with respect to their backgrounds in the particular field about which they were testifying.Now, merely because somebody is an expert and has this additional training does not mean that you are bound to accept their testimony. It means you're allowed to hear their testimony, but you should determine the credibility of the expert witnesses by the same standards and the same guidelines that you use to determine the credibility of non-expert witnesses. Do they have an interest in the case, or hostility or bias that might affect their testimony, and so on, all these other things I talk about. In other words, judge all the witnesses using the same criteria.You can accept the expert witness, his opinion, if you think it's reliable and truthful, and if you agree with the factual foundation for it; you can reject the witness' opinion if you don't think it's reasonable or logical or if you don't think that the factual foundation that it's based upon is accurate. So you make these decisions yourself.All right? Everybody with me on that? Any questions so far? Make sense, reasonable, logical? Right? | General Instruction—Expert Witness (Transcript pages 1546 to 1547—The court elaborates on the pattern instruction, in its own language, omitting any mention of what experts appeared:)Now, you know that in this case because of the nature of the case, there are many experts, doctors, economists and others who testified here.Now, what's the different between the testimony of an expert and a non-expert? Normally, a witness is allowed to testify to that which he or she saw or heard or tasted or smelled or touched. That which they know by their own senses. But in a case involving matters beyond the knowledge of us normal souls, we allow so-called experts to testify as to their opinions. And we do that based upon their experience, expertise and training.Now, you heard the testimony of the various experts with respect to their backgrounds in the particular field about which they were testifying.Now, merely because somebody is an expert and has this additional training does not mean that you are bound to accept their testimony. It means you're allowed to hear their testimony, but you should determine the credibility of the expert witnesses by the same standards and the same guidelines that you use to determine the credibility of non-expert witnesses. Do they have an interest in the case, or hostility or bias that might affect their testimony, and so on, all these other things I talk about. In other words, judge all the witnesses using the same criteria.You can accept the expert witness, his opinion, if you think it's reliable and truthful, and if you agree with the factual foundation for it; you can reject the witness' opinion if you don't think it's reasonable or logical or if you don't think that the factual foundation that it's based upon is accurate. So you make these decisions yourself.All right? Everybody with me on that? Any questions so far? Make sense, reasonable, logical? Right? |
| Okay.10. . | Okay.10. PJI 1:23. |
| Burden of Proof (Transcript pages 1547 to 1549—The court uses its own language in elaborating on the pattern instruction; discussion of preponderance, however, follows the pattern instruction:)Now, burden of proof. You've all heard the phrase burden of proof. In a civil case, in this case, the burden of proof rests on the plaintiff. And it remains with the plaintiff. The burden of proof does not shift back and forth; it does not shift because the defendant has cross-examined witnesses, it does not shift because the defendant has presented witnesses. The defendant does not have to disprove anything; the burden remains on the plaintiff to prove his claims with respect to each of the claims that are presented to you, each of the issues that are presented to you. So the burden of proof is on the plaintiff.Now, what is the standard of proof that the plaintiff must reach in order to succeed on a particular issue? The standard of proof in a civil case is a fair preponderance of the credible evidence. A key phrase for you to remember. A fair preponderance of the credible evidence.Well, what is the credible evidence? We talked about that. Credible evidence is that evidence which you believe after reviewing it and analyzing it and testing it, as I talked about before.What is a fair preponderance?(Court then follows pattern | Burden of Proof (Transcript pages 1547 to 1549—The court uses its own language in elaborating on the pattern instruction; discussion of preponderance, however, follows the pattern instruction:)Now, burden of proof. You've all heard the phrase burden of proof. In a civil case, in this case, the burden of proof rests on the plaintiff. And it remains with the plaintiff. The burden of proof does not shift back and forth; it does not shift because the defendant has cross-examined witnesses, it does not shift because the defendant has presented witnesses. The defendant does not have to disprove anything; the burden remains on the plaintiff to prove his claims with respect to each of the claims that are presented to you, each of the issues that are presented to you. So the burden of proof is on the plaintiff.Now, what is the standard of proof that the plaintiff must reach in order to succeed on a particular issue? The standard of proof in a civil case is a fair preponderance of the credible evidence. A key phrase for you to remember. A fair preponderance of the credible evidence.Well, what is the credible evidence? We talked about that. Credible evidence is that evidence which you believe after reviewing it and analyzing it and testing it, as I talked about before.What is a fair preponderance?(Court then follows pattern |
| instruction.)11. . | instruction.)11. PJI 1:24. |
| Return to Courtroom (Transcript pages 1549 to 1550—The court elaborates on the pattern instruction:)If you don't understand, the way it works is if I haven't made anything clear, if you have a question with respect to a principle of law, after the jury goes into the jury room you can send me a note asking for clarification on it. Just as if, just as if you don't recall a bit of the testimony that you're considering, if there's a difference of opinion as to what the testimony was by a witness or on a particular subject or if amongst those of you deliberating you don't recall what it is, we bring you back in and we'll have that portion of the testimony read. So save the | Return to Courtroom (Transcript pages 1549 to 1550—The court elaborates on the pattern instruction:)If you don't understand, the way it works is if I haven't made anything clear, if you have a question with respect to a principle of law, after the jury goes into the jury room you can send me a note asking for clarification on it. Just as if, just as if you don't recall a bit of the testimony that you're considering, if there's a difference of opinion as to what the testimony was by a witness or on a particular subject or if amongst those of you deliberating you don't recall what it is, we bring you back in and we'll have that portion of the testimony read. So save the |
| questions.12. . | questions.12. PJI 1:103. |
| General Instruction—Supplemental Charge—Note-Taking by Jurors (Transcript page 1550—The court elaborates on the pattern instruction:)Now, with respect to the side issue of note taking, we allowed one of the jurors—we let everybody take notes, but I think only one took notes, which is fine, but those notes are only for your own personal use, and an aide to your memory. Because the notes may not be accurate, may not be complete, they may not be given any greater weight than your independent recollection. And they may not be considered by the other jurors, it's your recollection, your recollection of the evidence that's important, and that should determine the outcome of the case.Those of you who did not take notes should not rely on the notes, you should rely on your own independent recollection, or if need be, read back of the testimony, as I told you just a moment | General Instruction—Supplemental Charge—Note-Taking by Jurors (Transcript page 1550—The court elaborates on the pattern instruction:)Now, with respect to the side issue of note taking, we allowed one of the jurors—we let everybody take notes, but I think only one took notes, which is fine, but those notes are only for your own personal use, and an aide to your memory. Because the notes may not be accurate, may not be complete, they may not be given any greater weight than your independent recollection. And they may not be considered by the other jurors, it's your recollection, your recollection of the evidence that's important, and that should determine the outcome of the case.Those of you who did not take notes should not rely on the notes, you should rely on your own independent recollection, or if need be, read back of the testimony, as I told you just a moment |
| ago.13. . | ago.13. PJI 1:25A. |
| Juror's Use of Professional Expertise (Transcript pages 1550 to 1551—The court omits sentence about professional expertise, and uses its own language:)In deciding this case, you must rely solely upon the testimony and the exhibits in this case. Anything outside of the courtroom is totally irrelevant. This case, as each case, must stand or fall on its own merits. And you must focus on the evidence in the | Juror's Use of Professional Expertise (Transcript pages 1550 to 1551—The court omits sentence about professional expertise, and uses its own language:)In deciding this case, you must rely solely upon the testimony and the exhibits in this case. Anything outside of the courtroom is totally irrelevant. This case, as each case, must stand or fall on its own merits. And you must focus on the evidence in the |
| case.14. . | case.14. PJI 1:25. |
| Consider Only Testimony and Exhibits (Transcript page 1551—The court's language varies considerably from the pattern instruction:)Now, what are the types of evidence? Well, you know already. It's the testimony given at trial, it's the exhibits introduced at trial, it's any reference to or any testimony from depositions or other prior proceedings that were read during the course of the trial. That is the evidence and that is what your verdict must be based on.Arguments, remarks, comments of counsel, are not evidence. And you may not rely on what the attorneys said during the course of the trial, you may not, that is not a substitute for evidence. What they said during the trial is not evidence, and I think I told you that in the beginning. So the verdict must solely be based on the evidence in the | Consider Only Testimony and Exhibits (Transcript page 1551—The court's language varies considerably from the pattern instruction:)Now, what are the types of evidence? Well, you know already. It's the testimony given at trial, it's the exhibits introduced at trial, it's any reference to or any testimony from depositions or other prior proceedings that were read during the course of the trial. That is the evidence and that is what your verdict must be based on.Arguments, remarks, comments of counsel, are not evidence. And you may not rely on what the attorneys said during the course of the trial, you may not, that is not a substitute for evidence. What they said during the trial is not evidence, and I think I told you that in the beginning. So the verdict must solely be based on the evidence in the |
| case.15. . | case.15. PJI 1:97. |
| General Instruction—Special Verdicts (Transcript pages 1551 to 1552—The court's language varies considerably from the pattern instruction:)In order to reach an answer to a question—and you know, of course, that you will get a verdict sheet, which has twelve questions and a couple of sub questions. In order to have an answer to any one of the questions or sub questions, it is not necessary that six—and there will only be six deliberating—that six agree on the verdict, or the answer. In a civil case, it is sufficient if five out of six of you agree. If six of you have agree and it's 6-0, that's fine; if it's 5-1, that's fine too. If it's 4-2, that's not an answer, if it's 3-3, not even close.So you must have at least five out of the six of you agree on the answer to a particular question. And after each question there is a line for dissenting juror, if any. Just as a matter of bookkeeping and making sure we have an accurate vote, we ask that the name, or the signature of the dissenting juror be put on the sheet. There is nothing wrong with dissenting. There is nothing wrong with being the lone juror on a particular issue, and I'll talk more about that later | General Instruction—Special Verdicts (Transcript pages 1551 to 1552—The court's language varies considerably from the pattern instruction:)In order to reach an answer to a question—and you know, of course, that you will get a verdict sheet, which has twelve questions and a couple of sub questions. In order to have an answer to any one of the questions or sub questions, it is not necessary that six—and there will only be six deliberating—that six agree on the verdict, or the answer. In a civil case, it is sufficient if five out of six of you agree. If six of you have agree and it's 6-0, that's fine; if it's 5-1, that's fine too. If it's 4-2, that's not an answer, if it's 3-3, not even close.So you must have at least five out of the six of you agree on the answer to a particular question. And after each question there is a line for dissenting juror, if any. Just as a matter of bookkeeping and making sure we have an accurate vote, we ask that the name, or the signature of the dissenting juror be put on the sheet. There is nothing wrong with dissenting. There is nothing wrong with being the lone juror on a particular issue, and I'll talk more about that later |
| on.16. . | on.16. PJI 1:27. |
| Exclude | Exclude |
| Sympathy17. . | Sympathy17. PJI 2:235. |
| Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment (Transcript page 1553—The court starts discussing the issue, but does not give a complete instruction:)And then we come to the issues of liability. By now you all know what liability is. There's liability and there's damages. Talk about liability first. And as you heard, the names on the, in the questions refer to the three doctors, Robbins, Au and Burns, but, there's no question, but that Montefiore is responsible for anything they did and did not do. Because they were and are employees of Montefiore, worked there on Montefiore's behalf, Montefiore is an institution and operates through its employees, in this case, through its doctors. So although the name of Montefiore is not on the verdict sheet, I do that only to simplify the issues because there are specific issues presented to you with respect to the actions or failure to act of the three | Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment (Transcript page 1553—The court starts discussing the issue, but does not give a complete instruction:)And then we come to the issues of liability. By now you all know what liability is. There's liability and there's damages. Talk about liability first. And as you heard, the names on the, in the questions refer to the three doctors, Robbins, Au and Burns, but, there's no question, but that Montefiore is responsible for anything they did and did not do. Because they were and are employees of Montefiore, worked there on Montefiore's behalf, Montefiore is an institution and operates through its employees, in this case, through its doctors. So although the name of Montefiore is not on the verdict sheet, I do that only to simplify the issues because there are specific issues presented to you with respect to the actions or failure to act of the three |
| doctors.18. . | doctors.18. PJI 2:150. |
| Malpractice—Physician (Transcript pages 1553 to 1555—The court uses its own language leading into the pattern instruction:)Now, before I—well, let me read to you the first question on the verdict sheet which deals with liability.Question number 1: Did Dr. Robbins depart from accepted medical practice in not ordering blood cultures? First question. The issue is depart from accepted medical practice. Now, you know this is a medical malpractice case, you know medical malpractice is negligence of a doctor.Now, if I were to ask you what is negligence, there are nine of you, I'd probably get ten or fifteen different definitions. But I want to tell you what negligence is and what medical malpractice is.(At this point, the court adheres reasonably closely to the pattern instruction, omitting optional instruction and final paragraphs; the court adds:)Everybody with me on that? So you don't look back and say well, this happened, therefore, they must have known. You have to see what was known or should have been known based upon the circumstances at the time of the alleged departure. If the doctor is negligent, that is lacks the skill or knowledge required of him or her in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.So to put—to get back to the first question, did Dr. Robbins depart from accepted medical practice in not ordering blood cultures, I gave you the principles of law that govern this question, and you must apply the principles of law to the facts that you find in order to answer that question.Now, if you find that Dr. Robbins did not depart from accepted practice, then you'll answer that question no and go on to question 3. If you find that he did depart from accepted practice, then you'll answer that question yes and go on to question 2. Which is: Was that departure a substantial factor in causing Kevin Smith's injury?An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is if it had such an affect in producing the injury that reasonable people would regard it as a cause of the | Malpractice—Physician (Transcript pages 1553 to 1555—The court uses its own language leading into the pattern instruction:)Now, before I—well, let me read to you the first question on the verdict sheet which deals with liability.Question number 1: Did Dr. Robbins depart from accepted medical practice in not ordering blood cultures? First question. The issue is depart from accepted medical practice. Now, you know this is a medical malpractice case, you know medical malpractice is negligence of a doctor.Now, if I were to ask you what is negligence, there are nine of you, I'd probably get ten or fifteen different definitions. But I want to tell you what negligence is and what medical malpractice is.(At this point, the court adheres reasonably closely to the pattern instruction, omitting optional instruction and final paragraphs; the court adds:)Everybody with me on that? So you don't look back and say well, this happened, therefore, they must have known. You have to see what was known or should have been known based upon the circumstances at the time of the alleged departure. If the doctor is negligent, that is lacks the skill or knowledge required of him or her in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.So to put—to get back to the first question, did Dr. Robbins depart from accepted medical practice in not ordering blood cultures, I gave you the principles of law that govern this question, and you must apply the principles of law to the facts that you find in order to answer that question.Now, if you find that Dr. Robbins did not depart from accepted practice, then you'll answer that question no and go on to question 3. If you find that he did depart from accepted practice, then you'll answer that question yes and go on to question 2. Which is: Was that departure a substantial factor in causing Kevin Smith's injury?An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is if it had such an affect in producing the injury that reasonable people would regard it as a cause of the |
| injury.19. . | injury.19. PJI 2:70. |
| Proximate Cause—In General (Transcript pages 1558 to 1560—Language on “substantial factor,” discussed in pattern instruction 2:70, is combined with a discussion of the verdict sheet:)There may be more than one cause of an injury, and that's why you'll see there are several questions regarding several departures here.Now, there are, and it was alluded to before, five sets of liability questions. Two with respect to Dr. Robbins, two sets of questions with respect to Dr. Au, and one set of questions with respect to Dr. Burns. Dr. Robbins involves the blood cultures and echocardiogram. Dr. Au, blood cultures and echocardiogram. Dr. Burns, not ordering immediate admission to the hospital. All right? You'll consider each of those pairs independently. I mean you'll consider all the evidence together, but each of those pairs of questions and each of the questions actually is separate and distinct question which must be answered, the answer to which must be based upon the evidence that's relevant to that question.Now, the question with respect to substantial factor, which is the second part of each of those pairs, is sometimes confusing but it's really very simple. You can have a departure with no injury resulting from it. You can have an injury but no departure. The substantial factor is the link between the departure and the injury. All right? And that's what it's about. So I don't think I have to read all of the questions, I think they're all pretty obvious with respect to the questions of liability.If you answer any of those pairs yes, if you say there was a departure and that departure was a substantial factor of causing injury to Kevin Smith, if you answer one of those pairs yes, or two or three or four or five, doesn't make a difference, as long as there is one pair that is answered affirmatively, then you will go on to the question of damages. If you find there was no departure on behalf of anybody, or no substantial factor, and therefore no liability, then you won't talk about damages. But if you find there is liability with respect to one or more of those sets of questions, then you will go on to talk about damages.And damages are in question 11—and by the way, after each question, there are instructions on how to proceed depending upon what your answer is. So, for example, after question 1, it says if yes, go to question 2. If no, go to question 3. So that I think it's quite clear when we get to questions 9 and 10, the instructions get a little wordier but I think it's fairly | Proximate Cause—In General (Transcript pages 1558 to 1560—Language on “substantial factor,” discussed in pattern instruction 2:70, is combined with a discussion of the verdict sheet:)There may be more than one cause of an injury, and that's why you'll see there are several questions regarding several departures here.Now, there are, and it was alluded to before, five sets of liability questions. Two with respect to Dr. Robbins, two sets of questions with respect to Dr. Au, and one set of questions with respect to Dr. Burns. Dr. Robbins involves the blood cultures and echocardiogram. Dr. Au, blood cultures and echocardiogram. Dr. Burns, not ordering immediate admission to the hospital. All right? You'll consider each of those pairs independently. I mean you'll consider all the evidence together, but each of those pairs of questions and each of the questions actually is separate and distinct question which must be answered, the answer to which must be based upon the evidence that's relevant to that question.Now, the question with respect to substantial factor, which is the second part of each of those pairs, is sometimes confusing but it's really very simple. You can have a departure with no injury resulting from it. You can have an injury but no departure. The substantial factor is the link between the departure and the injury. All right? And that's what it's about. So I don't think I have to read all of the questions, I think they're all pretty obvious with respect to the questions of liability.If you answer any of those pairs yes, if you say there was a departure and that departure was a substantial factor of causing injury to Kevin Smith, if you answer one of those pairs yes, or two or three or four or five, doesn't make a difference, as long as there is one pair that is answered affirmatively, then you will go on to the question of damages. If you find there was no departure on behalf of anybody, or no substantial factor, and therefore no liability, then you won't talk about damages. But if you find there is liability with respect to one or more of those sets of questions, then you will go on to talk about damages.And damages are in question 11—and by the way, after each question, there are instructions on how to proceed depending upon what your answer is. So, for example, after question 1, it says if yes, go to question 2. If no, go to question 3. So that I think it's quite clear when we get to questions 9 and 10, the instructions get a little wordier but I think it's fairly |
| clear.20. . | clear.20. PJI 2:151A(1). |
| Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized Verdict (Transcript pages 1560 to 1561—The court discusses damages in the context of a review of the verdict sheet:)Now, question 11 says: State separately the amount awarded to the plaintiff for, and it lists A through J. Its pain and suffering to date; pain and suffering in the future; loss of earnings to date; loss of earnings in the future; medical care in the future; medical equipment in the future; physical and occupational therapy in the future; speech therapy in the future; psychological therapy in the future; and home health aide in the future. And if you get to this point you have to address each of those sub questions individually. All right? And the—let me just—we'll get to that in a moment.If you find that either of the defendants is liable, as I said before, then the plaintiff, Mr. Smith, is entitled to a sum of money which will justly and fairly compensate him for any injury and pain and suffering to date caused by a defendant or defendants. The key phrase for pain and suffering to date, which is question 11 A, is just and fair compensation. I don't tell you if you think this is what he has you award this amount of money, or if you think that's what he has, that amount of money. The only guidance I give you is just and fair compensation based upon the evidence in the case.Now what is just and fair? You decide that. Right? Use your common sense, use your experience, you look at the evidence in the case and come up to a reasonable, just and fair amount.Mr. Moore, as he has a right to do, suggested an amount to you for pain and suffering to date, and pain and suffering in the future. And also while I'm mentioning it, there are numbers that Dr. Seplaki offered to you. You're not bound by any of those numbers, they're presented to you for your consideration, but certainly you're not bound by any of those numbers, just like you're not bound by anything the attorneys say. Of course what Dr. Seplaki said is part of the evidence in the case, and you may consider it as such.(This discussion continues at instruction | Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized Verdict (Transcript pages 1560 to 1561—The court discusses damages in the context of a review of the verdict sheet:)Now, question 11 says: State separately the amount awarded to the plaintiff for, and it lists A through J. Its pain and suffering to date; pain and suffering in the future; loss of earnings to date; loss of earnings in the future; medical care in the future; medical equipment in the future; physical and occupational therapy in the future; speech therapy in the future; psychological therapy in the future; and home health aide in the future. And if you get to this point you have to address each of those sub questions individually. All right? And the—let me just—we'll get to that in a moment.If you find that either of the defendants is liable, as I said before, then the plaintiff, Mr. Smith, is entitled to a sum of money which will justly and fairly compensate him for any injury and pain and suffering to date caused by a defendant or defendants. The key phrase for pain and suffering to date, which is question 11 A, is just and fair compensation. I don't tell you if you think this is what he has you award this amount of money, or if you think that's what he has, that amount of money. The only guidance I give you is just and fair compensation based upon the evidence in the case.Now what is just and fair? You decide that. Right? Use your common sense, use your experience, you look at the evidence in the case and come up to a reasonable, just and fair amount.Mr. Moore, as he has a right to do, suggested an amount to you for pain and suffering to date, and pain and suffering in the future. And also while I'm mentioning it, there are numbers that Dr. Seplaki offered to you. You're not bound by any of those numbers, they're presented to you for your consideration, but certainly you're not bound by any of those numbers, just like you're not bound by anything the attorneys say. Of course what Dr. Seplaki said is part of the evidence in the case, and you may consider it as such.(This discussion continues at instruction |
| 25.)21. . | 25.)21. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page 1562—The court omits basic discussion of pain and suffering from | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page 1562—The court omits basic discussion of pain and suffering from |
| , | PJI 2:280, |
| and goes to supplemental instruction 2:280.1:)Now, when we talk about pain and suffering, whether it's to date or in the future, pain and suffering means not only the physical pain and the physical limitations that resulted, but, and that he had, but also means the affect of that pain and that limitation has on his ability to enjoy life, his ability to engage in those activities which he engaged in prior to the injury that he sustained. It means his ability to perform daily tasks, and to experience the pleasures of life. So it's not limited to the actual pain and limitations, includes all of those things that you think flowed from | and goes to supplemental instruction 2:280.1:)Now, when we talk about pain and suffering, whether it's to date or in the future, pain and suffering means not only the physical pain and the physical limitations that resulted, but, and that he had, but also means the affect of that pain and that limitation has on his ability to enjoy life, his ability to engage in those activities which he engaged in prior to the injury that he sustained. It means his ability to perform daily tasks, and to experience the pleasures of life. So it's not limited to the actual pain and limitations, includes all of those things that you think flowed from |
| it.22. . | it.22. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages 1562 to 1563—The court adheres reasonably closely to the pattern instruction, although omitting the possibility that the injuries will not be permanent:)Now, the second question is pain and suffering in the future. With respect to any of Mr. Smith's injuries or disabilities that you find to be permanent, he is entitled to recover for future pain and suffering and disability and the loss of his ability to enjoy life, as I just talked to you about. In this regard, you may take into consideration the period of time that plaintiff can be expected to live.(Court adds:)Now, obviously we have no crystal balls and we can't say exactly how long an individual is going to live. But there are statistical tables put out by the United States government that you may consider, if you think it appropriate. And pursuant to that table, for a man who is 42 years of age, they say 45.4 years, close enough, so he has a life expectancy of 34.4 years. That does not mean he will live to that age, or live that long, nor does it mean he will not live longer.By the way, women have longer life | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages 1562 to 1563—The court adheres reasonably closely to the pattern instruction, although omitting the possibility that the injuries will not be permanent:)Now, the second question is pain and suffering in the future. With respect to any of Mr. Smith's injuries or disabilities that you find to be permanent, he is entitled to recover for future pain and suffering and disability and the loss of his ability to enjoy life, as I just talked to you about. In this regard, you may take into consideration the period of time that plaintiff can be expected to live.(Court adds:)Now, obviously we have no crystal balls and we can't say exactly how long an individual is going to live. But there are statistical tables put out by the United States government that you may consider, if you think it appropriate. And pursuant to that table, for a man who is 42 years of age, they say 45.4 years, close enough, so he has a life expectancy of 34.4 years. That does not mean he will live to that age, or live that long, nor does it mean he will not live longer.By the way, women have longer life |
| expectancy.23. . | expectancy.23. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In General (Transcript pages 1563 to 1566—First three paragraphs of the pattern instruction are followed reasonably closely by the court, after which the court goes into specifics of this suit:)In this connection, as you know he's now 42 years of age, he has, as I said a life expectancy, according to the charts, which is not binding on you in any way, of 34.4 years, and has a life expectancy, according to the last chart that we've been provided with, of 18.7 years, a work life expectancy for a 42 year old male, 18.7 years. According to 1986 table, which is the last table that the courts are provided with. You can consider that table along with all of the other evidence in the case.Author's Comment: The court's reference to “the 1986 table, which is the last table [of work life expectancy] that the courts are provided with” is apparently a reference to the tables included in NY PJI, currently at 1B | Damages—Personal Injury—Loss of Earnings—In General (Transcript pages 1563 to 1566—First three paragraphs of the pattern instruction are followed reasonably closely by the court, after which the court goes into specifics of this suit:)In this connection, as you know he's now 42 years of age, he has, as I said a life expectancy, according to the charts, which is not binding on you in any way, of 34.4 years, and has a life expectancy, according to the last chart that we've been provided with, of 18.7 years, a work life expectancy for a 42 year old male, 18.7 years. According to 1986 table, which is the last table that the courts are provided with. You can consider that table along with all of the other evidence in the case.Author's Comment: The court's reference to “the 1986 table, which is the last table [of work life expectancy] that the courts are provided with” is apparently a reference to the tables included in NY PJI, currently at 1B |
| , | NY PJI3d 2:290, |
| at 1042 to 1055 (2018). The presence of such information in NY PJI is not intended as a limitation on what counsel might do to present the fact-finder with more recent information. See 1B NY PJI3d 2:290, at 948 (2018).There was testimony by Dr. Seplaki with respect to that issue. You may consider that the table was a 1986 table, and what, if any, changes you think would have occurred in those figures since then, using your life experience, and common sense. Again, such tables are nothing more than statistical averages, they neither assure that he would have had the working lifespan that I told you, nor did they mean he wouldn't have worked for a longer period of time. Again, these may be considered by you along with your own experience and the other testimony in determining what his work life expectancy was.If you find that plaintiff is entitled to an award for diminution of his earning capacity in the future, you will fix the dollar amount of such diminution over the entire period that you find plaintiff will suffer such diminution and include that amount in your verdict, if you find for the | at 1042 to 1055 (2018). The presence of such information in NY PJI is not intended as a limitation on what counsel might do to present the fact-finder with more recent information. See 1B NY PJI3d 2:290, at 948 (2018).There was testimony by Dr. Seplaki with respect to that issue. You may consider that the table was a 1986 table, and what, if any, changes you think would have occurred in those figures since then, using your life experience, and common sense. Again, such tables are nothing more than statistical averages, they neither assure that he would have had the working lifespan that I told you, nor did they mean he wouldn't have worked for a longer period of time. Again, these may be considered by you along with your own experience and the other testimony in determining what his work life expectancy was.If you find that plaintiff is entitled to an award for diminution of his earning capacity in the future, you will fix the dollar amount of such diminution over the entire period that you find plaintiff will suffer such diminution and include that amount in your verdict, if you find for the |
| plaintiff.24. . | plaintiff.24. PJI 2:151C. |
| Malpractice—Medical, Dental and Podiatric Malpractice—Income Taxation of Lost | Malpractice—Medical, Dental and Podiatric Malpractice—Income Taxation of Lost |
| Earnings25. . | Earnings25. PJI 2:151A(1). |
| Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized Verdict (Transcript pages 1566 to 1568—Continued from instruction 20; the court discusses damages in the context of a review of the verdict sheet:)Now, with respect to the other items, based upon the evidence you may also include an award for those items which you'll have to separately state on each line the amount for damages incurred or to be incurred in the future in this case. And there are several items, medical care in the future, you heard testimony about that, medical equipment in the future, physical and occupational therapy in the future, speech therapy in the future, psychological therapy in the future and home health aide in the future.You heard the testimony about that; you will decide what part of the testimony you will accept, and what part you reject, and you will make a determination to award damages based upon this specific evidence in the case with respect to each of those issues. If you decide to award money for any of items, from pain and suffering all the way down to home health aide, you'll state on the line provided the amount of money that you are awarding. If you decide to award no money on a particular line, write none, or zero is okay. But none or zero so we know you didn't just forget it, that you've actually considered it.If you award damages as compensation for future losses or for future items, the next, you'll go on to question 12, because one of the considerations in awarding future damages, just one of the considerations, is the amount of time that the award for future damages is intended to compensate Mr. Smith. So what we want to know in question 12 is how many years you intend the award for a particular future item to compensate Mr. Smith.So it says: If you award damages, state the number of years over which each such award is intended to provide compensation for, A, pain and suffering in the future. So if you've awarded damages for pain and suffering in the future, state the number of years over which that award is intended to provide compensation. And that's the same for loss of earnings, medical care, medical equipment, physical and occupational therapy in the future, speech therapy, psychological therapy, home health aide in the future. All right. And again, if you didn't award any damages in the future at all, you don't have to get to the that, but if you've awarded some damages in the future and not others, put down the number of years where it's appropriate and write down none on the line where you have awarded no future damages. All right?26. (Transcript pages 1568 to 1569—No corresponding pattern instruction, regarding errors, corrections:)Now, the last thing I do, or next to the last thing I will do is, before I send you to deliberate, is take the attorneys in the back and give them the opportunity to tell me if they think I said something wrong or if they think I forgot to say something. And if I agree with them I'll come back and either correct what I said or add on to what I said. And if not, I will just give you my final remarks and send you to | Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized Verdict (Transcript pages 1566 to 1568—Continued from instruction 20; the court discusses damages in the context of a review of the verdict sheet:)Now, with respect to the other items, based upon the evidence you may also include an award for those items which you'll have to separately state on each line the amount for damages incurred or to be incurred in the future in this case. And there are several items, medical care in the future, you heard testimony about that, medical equipment in the future, physical and occupational therapy in the future, speech therapy in the future, psychological therapy in the future and home health aide in the future.You heard the testimony about that; you will decide what part of the testimony you will accept, and what part you reject, and you will make a determination to award damages based upon this specific evidence in the case with respect to each of those issues. If you decide to award money for any of items, from pain and suffering all the way down to home health aide, you'll state on the line provided the amount of money that you are awarding. If you decide to award no money on a particular line, write none, or zero is okay. But none or zero so we know you didn't just forget it, that you've actually considered it.If you award damages as compensation for future losses or for future items, the next, you'll go on to question 12, because one of the considerations in awarding future damages, just one of the considerations, is the amount of time that the award for future damages is intended to compensate Mr. Smith. So what we want to know in question 12 is how many years you intend the award for a particular future item to compensate Mr. Smith.So it says: If you award damages, state the number of years over which each such award is intended to provide compensation for, A, pain and suffering in the future. So if you've awarded damages for pain and suffering in the future, state the number of years over which that award is intended to provide compensation. And that's the same for loss of earnings, medical care, medical equipment, physical and occupational therapy in the future, speech therapy, psychological therapy, home health aide in the future. All right. And again, if you didn't award any damages in the future at all, you don't have to get to the that, but if you've awarded some damages in the future and not others, put down the number of years where it's appropriate and write down none on the line where you have awarded no future damages. All right?26. (Transcript pages 1568 to 1569—No corresponding pattern instruction, regarding errors, corrections:)Now, the last thing I do, or next to the last thing I will do is, before I send you to deliberate, is take the attorneys in the back and give them the opportunity to tell me if they think I said something wrong or if they think I forgot to say something. And if I agree with them I'll come back and either correct what I said or add on to what I said. And if not, I will just give you my final remarks and send you to |
| deliberate.27. . | deliberate.27. PJI 1:28. |
| Conclusion (Transcript pages 1570 to 1572—The court concludes in its own language, covering the same points made by the pattern instruction:)So now I've outlined for you the principles of law that apply, and I think I gave you the procedure that you should follow in responding to the questions. You will decide what the answers are, and your answers, depending upon what your answers are, you'll answer all or part of the questions on the verdict sheet. In order for the deliberation to—I just, one other question I forgot to ask.* * *So traditionally Juror Number 1 is the foreman. Or I should say foreperson. The first the job of the foreman is to sort of organize things. Take the vote, send us the notes, if there are any. But the foreperson only has the same one vote as anybody else and has no greater voice in deliberations merely by reason of being the foreman.Now, deliberations, what does that mean? Deliberations is a two-sided affair. That means that each of you has the obligation to go into the jury room and express your views. Give the others the benefit of your two and a half weeks here. Right? So the reason we have you all is so that we'll have more voices than merely one. So each of you has the obligation to express your views on whatever you are discussing. The flip side of that is that each of you has the obligation to listen with an open mind to what the others have to say on the issue. And it's through this give and take process that we'll hope that you will reach a verdict.It is the duty of each of you to consult with one another and to deliberate with a view of reaching agreement on a verdict, if you can do so without violating your individual judgment and your individual conscience. So that although we need a collective vote, your individual votes must be based upon your own judgment after listening to what everybody else has to say, and must be based upon your own conscientiously held belief after listening to what everybody else has to say.You shouldn't change your vote merely because others disagree with you. But feel free to, and open to change your vote if after listening to the others you realize that you want to change your vote. Maybe you missed something, or you misunderstood something. So go in there with an open mind, express yourself, listen to what the others have to say, and then reach an individual decision and then you'll reach a collective decision.For the parties involved here, it's an important case, both for the plaintiff and for the defendants. As counsel, I think, have both said, you've been here every day for the last couple of weeks, you've listened attentively, now it is time to stop listening, to start talking and to concentrate on the evidence in the | Conclusion (Transcript pages 1570 to 1572—The court concludes in its own language, covering the same points made by the pattern instruction:)So now I've outlined for you the principles of law that apply, and I think I gave you the procedure that you should follow in responding to the questions. You will decide what the answers are, and your answers, depending upon what your answers are, you'll answer all or part of the questions on the verdict sheet. In order for the deliberation to—I just, one other question I forgot to ask.* * *So traditionally Juror Number 1 is the foreman. Or I should say foreperson. The first the job of the foreman is to sort of organize things. Take the vote, send us the notes, if there are any. But the foreperson only has the same one vote as anybody else and has no greater voice in deliberations merely by reason of being the foreman.Now, deliberations, what does that mean? Deliberations is a two-sided affair. That means that each of you has the obligation to go into the jury room and express your views. Give the others the benefit of your two and a half weeks here. Right? So the reason we have you all is so that we'll have more voices than merely one. So each of you has the obligation to express your views on whatever you are discussing. The flip side of that is that each of you has the obligation to listen with an open mind to what the others have to say on the issue. And it's through this give and take process that we'll hope that you will reach a verdict.It is the duty of each of you to consult with one another and to deliberate with a view of reaching agreement on a verdict, if you can do so without violating your individual judgment and your individual conscience. So that although we need a collective vote, your individual votes must be based upon your own judgment after listening to what everybody else has to say, and must be based upon your own conscientiously held belief after listening to what everybody else has to say.You shouldn't change your vote merely because others disagree with you. But feel free to, and open to change your vote if after listening to the others you realize that you want to change your vote. Maybe you missed something, or you misunderstood something. So go in there with an open mind, express yourself, listen to what the others have to say, and then reach an individual decision and then you'll reach a collective decision.For the parties involved here, it's an important case, both for the plaintiff and for the defendants. As counsel, I think, have both said, you've been here every day for the last couple of weeks, you've listened attentively, now it is time to stop listening, to start talking and to concentrate on the evidence in the |
| case.28. . | case.28. PJI 1:29. |
| Alternate Jurors (Transcript page 1572—The court uses its own language:)Now, we have three jurors who are alternates. That's you three fellows back there. You snuck up into the front row early on, thought we'd forget. But we will ask the three alternates to stay around right now, when I send the six jurors to deliberate, and Harry will take you, and we can keep you secure for the time being.29. (Transcript 1572 to 1573—No corresponding pattern instruction, regarding verdict sheet:)What happens now, you will go, I prepared the verdict sheet that you've heard about, we will mark one copy as a Court exhibit, I will give each of you, each of the six a copy of the official Court exhibit, it's the verdict sheet that you can use to follow along so you know what question you're considering. You can make notes on it, rather than just giving you blank pieces of paper, I might as well give you copies of them. We do not want to see those copies. Those copies are for you and for you alone to take notes and do whatever you want to do with it. At the end of trial you can tear them up and throw them away, you can frame them, do whatever you want, but we do not want to see them, okay? It's just to make life a little easier for you. And of course the attorneys already have copies of the verdict sheet. So let's mark this as Court's Exhibit 1.Author's Comment: The court gives each juror a copy of the itemized verdict sheet—a good | Alternate Jurors (Transcript page 1572—The court uses its own language:)Now, we have three jurors who are alternates. That's you three fellows back there. You snuck up into the front row early on, thought we'd forget. But we will ask the three alternates to stay around right now, when I send the six jurors to deliberate, and Harry will take you, and we can keep you secure for the time being.29. (Transcript 1572 to 1573—No corresponding pattern instruction, regarding verdict sheet:)What happens now, you will go, I prepared the verdict sheet that you've heard about, we will mark one copy as a Court exhibit, I will give each of you, each of the six a copy of the official Court exhibit, it's the verdict sheet that you can use to follow along so you know what question you're considering. You can make notes on it, rather than just giving you blank pieces of paper, I might as well give you copies of them. We do not want to see those copies. Those copies are for you and for you alone to take notes and do whatever you want to do with it. At the end of trial you can tear them up and throw them away, you can frame them, do whatever you want, but we do not want to see them, okay? It's just to make life a little easier for you. And of course the attorneys already have copies of the verdict sheet. So let's mark this as Court's Exhibit 1.Author's Comment: The court gives each juror a copy of the itemized verdict sheet—a good |
| idea.30. . | idea.30. PJI 1:24. |
| Return to Courtroom (Transcript page 1573 to 1575—The court elaborates on the pattern instruction:)Now, we will be here waiting for you. You'll be in the jury room, if you have any questions about the law, you'll write a note to me and I'll bring you back and try to clarify that for you. If you want any of the exhibits sent in, just send a note saying, we want all the exhibits, or we want particular exhibits. We have piled them up there and we will send them in without even bringing you back down here.If you need a portion of the testimony read back, it's been a long trial, don't ask for all of the trial testimony read back, please, even though we have it transcribed, if you need a portion, try to be as specific as you can so we can search it down. Even though it's transcribed, it takes a little bit of time to find it, but if you do need that you'll write a note. Harry will be outside the door and you'll give it to us and we will gather it and try to get it to you as soon as possible.* * *With respect to the exhibits, you see some of the chart, I think the Mount Sinai chart is particularly thick, if there are any particular pages of any of those records that you want to see, we'll send in the whole thing, but I guess we can mark it with one of those stickums that have become so prevalent these days—I wish I invented that. So if you want a particular page or pages, we'll try to help you out, otherwise, if you want the whole thing unmarked we'll send the whole thing to you. Okay. And again, we'll be waiting here.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21754735Second appeal: Smith v. Au, 20 A.D.3d 364, 799 N.Y.S.2d 215 (1st Dep't 2005)First appeal: Smith v. Au, 8 A.D.3d 1, 777 N.Y.S.2d 298 (1st Dep't 2004)Trial Motion, Memorandum and Affidavit (Attorney's Affirmation in Opposition), 2003 WL 24302307Trial Transcript, 2003 WL 24301972Expert Trial Transcript (Dr. Monty Bodenheimer), 2003 WL 24295223Expert Trial Transcript (Dr. Jay Kislak, M.D.), 2003 WL 24295221Trial Pleading (Second Verified Amended Answer), 1999 WL 33999881Jury Instruction, 2003 WL 24301665Verdict, Agreement and Settlement (Verdict), 2003 WL 243016572.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Return to Courtroom (Transcript page 1573 to 1575—The court elaborates on the pattern instruction:)Now, we will be here waiting for you. You'll be in the jury room, if you have any questions about the law, you'll write a note to me and I'll bring you back and try to clarify that for you. If you want any of the exhibits sent in, just send a note saying, we want all the exhibits, or we want particular exhibits. We have piled them up there and we will send them in without even bringing you back down here.If you need a portion of the testimony read back, it's been a long trial, don't ask for all of the trial testimony read back, please, even though we have it transcribed, if you need a portion, try to be as specific as you can so we can search it down. Even though it's transcribed, it takes a little bit of time to find it, but if you do need that you'll write a note. Harry will be outside the door and you'll give it to us and we will gather it and try to get it to you as soon as possible.* * *With respect to the exhibits, you see some of the chart, I think the Mount Sinai chart is particularly thick, if there are any particular pages of any of those records that you want to see, we'll send in the whole thing, but I guess we can mark it with one of those stickums that have become so prevalent these days—I wish I invented that. So if you want a particular page or pages, we'll try to help you out, otherwise, if you want the whole thing unmarked we'll send the whole thing to you. Okay. And again, we'll be waiting here.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21754735Second appeal: Smith v. Au, 20 A.D.3d 364, 799 N.Y.S.2d 215 (1st Dep't 2005)First appeal: Smith v. Au, 8 A.D.3d 1, 777 N.Y.S.2d 298 (1st Dep't 2004)Trial Motion, Memorandum and Affidavit (Attorney's Affirmation in Opposition), 2003 WL 24302307Trial Transcript, 2003 WL 24301972Expert Trial Transcript (Dr. Monty Bodenheimer), 2003 WL 24295223Expert Trial Transcript (Dr. Jay Kislak, M.D.), 2003 WL 24295221Trial Pleading (Second Verified Amended Answer), 1999 WL 33999881Jury Instruction, 2003 WL 24301665Verdict, Agreement and Settlement (Verdict), 2003 WL 243016572.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:3 Medical malpractice/Failure to detect lymphoma; wrongful death/One plaintiff, one defendantA. BackgroundType of Case: Medical Malpractice; wrongful deathType of Injury: Lymphoma; failure to detect, causing deathCase Name: Daniel Papa, individually, and Daniel Papa, as Executor of the Estate of Ellen Papa, Plaintiff, v. Robert E. Sarnataro, Defendant.Court: Supreme Court of New York, Queens CountyJudge: Orin R. KitzesDocket Number: 20035/97Verdict Date: January 2003Outcome: Verdict for defense; reversed on appeal, new trial granted.Brief Summary of Facts: The executor of an estate of a deceased patient brought a wrongful death suit against a physician, alleging medical malpractice in failing to timely diagnose lymphoma. Verdict for defendant/physician.On appeal, the court reversed because it found that the verdict sheet impermissibly skewed a question in the physician's favor. The court said: “The verdict sheet virtually told the jury to adopt the defendant's version of the number of times Ellen Papa complained of night sweats and to reject the testimony to the contrary of the plaintiff and Ellen Papa. Had it stated ‘complaint or complaints' or had it posed a preliminary interrogatory ‘Did Ellen Papa complain to the defendant about night sweats more than once?’ we would not be granting a new trial. The verdict sheet impermissibly skewed in the defendant's favor the question of departure based on the most contested factual issue in the case—the number of times Ellen Papa had complained to the defendant about her night sweats.”Author's Comment: The appellant's brief on appeal, 2004 WL 3718353, *13, relates in full the plaintiff's objection below to the phrasing on the verdict sheet; the brief itself argued that this was but one of several errors, the cumulative effect of which was prejudicial regarding the issue of whether the decedent had complained more than once. The Appellate Division, Second Department, Papa v. Sarnatoro, 17 A.D.3d 430, 792 N.Y.S.2d 613 (2d Dept. 2005), however, rejected the other pieces of that argument. Preservation of error with regard to this particular item, accordingly, was key to the success of the appeal. See generally 1A | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:3 Medical malpractice/Failure to detect lymphoma; wrongful death/One plaintiff, one defendantA. BackgroundType of Case: Medical Malpractice; wrongful deathType of Injury: Lymphoma; failure to detect, causing deathCase Name: Daniel Papa, individually, and Daniel Papa, as Executor of the Estate of Ellen Papa, Plaintiff, v. Robert E. Sarnataro, Defendant.Court: Supreme Court of New York, Queens CountyJudge: Orin R. KitzesDocket Number: 20035/97Verdict Date: January 2003Outcome: Verdict for defense; reversed on appeal, new trial granted.Brief Summary of Facts: The executor of an estate of a deceased patient brought a wrongful death suit against a physician, alleging medical malpractice in failing to timely diagnose lymphoma. Verdict for defendant/physician.On appeal, the court reversed because it found that the verdict sheet impermissibly skewed a question in the physician's favor. The court said: “The verdict sheet virtually told the jury to adopt the defendant's version of the number of times Ellen Papa complained of night sweats and to reject the testimony to the contrary of the plaintiff and Ellen Papa. Had it stated ‘complaint or complaints' or had it posed a preliminary interrogatory ‘Did Ellen Papa complain to the defendant about night sweats more than once?’ we would not be granting a new trial. The verdict sheet impermissibly skewed in the defendant's favor the question of departure based on the most contested factual issue in the case—the number of times Ellen Papa had complained to the defendant about her night sweats.”Author's Comment: The appellant's brief on appeal, 2004 WL 3718353, *13, relates in full the plaintiff's objection below to the phrasing on the verdict sheet; the brief itself argued that this was but one of several errors, the cumulative effect of which was prejudicial regarding the issue of whether the decedent had complained more than once. The Appellate Division, Second Department, Papa v. Sarnatoro, 17 A.D.3d 430, 792 N.Y.S.2d 613 (2d Dept. 2005), however, rejected the other pieces of that argument. Preservation of error with regard to this particular item, accordingly, was key to the success of the appeal. See generally 1A |
| , | NY PJI 1:1, |
| at 10 (2018) (“Even though a party objects at a charge conference to the language in the court's proposed charge, it fails to preserve the objection if it does not also object to the special interrogatories on that ground.” (citations omitted)), although even so the case may have come within the rule that “even in the absence of preservation, a trial or appellate court may exercise its discretion to set aside a verdict because of an error in the charge if the error is fundamental.” | at 10 (2018) (“Even though a party objects at a charge conference to the language in the court's proposed charge, it fails to preserve the objection if it does not also object to the special interrogatories on that ground.” (citations omitted)), although even so the case may have come within the rule that “even in the absence of preservation, a trial or appellate court may exercise its discretion to set aside a verdict because of an error in the charge if the error is fundamental.” |
| Id. |
| (citations omitted).B. Jury Instructions Given by the | (citations omitted).B. Jury Instructions Given by the |
| Court1. . Introduction2. . Impartiality3. . | Court1. PJI 1:20. Introduction2. PJI 1:36. Impartiality3. PJI 1:37. |
| Jury Function (Transcript page A-1072—The court omits: “As the sole judges of the facts, you must decide which of the witnesses you believed, what portion of their testimony you accepted, and what weight you give to | Jury Function (Transcript page A-1072—The court omits: “As the sole judges of the facts, you must decide which of the witnesses you believed, what portion of their testimony you accepted, and what weight you give to |
| it.”)4. . | it.”)4. PJI 1:38. |
| Court's Function (Transcript page A01072—The court includes “special verdict” | Court's Function (Transcript page A01072—The court includes “special verdict” |
| language.)5. . | language.)5. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings6. . | Rulings6. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence7. . | Evidence7. PJI 1:41. |
| Weighing | Weighing |
| Testimony8. . | Testimony8. PJI 1:90. |
| General Instruction-Expert Witness (Transcript page A-1075—The court specifies experts:)You will recall that the following witnesses testified concerning their qualifications as expert in their respective fields of medicine, and they gave their opinions concerning the issues in this case:Robert Sarnataro, internal medicine; Wilfredo Talavera, internal medicine; Richard Hirschman, internal medicine and oncology; Peter Wiernik, internal medicine and oncology; Arthur Heller, internal medicine; Amy Chadburn, pathologist; Morton Coleman, internal medicine, hematology and | General Instruction-Expert Witness (Transcript page A-1075—The court specifies experts:)You will recall that the following witnesses testified concerning their qualifications as expert in their respective fields of medicine, and they gave their opinions concerning the issues in this case:Robert Sarnataro, internal medicine; Wilfredo Talavera, internal medicine; Richard Hirschman, internal medicine and oncology; Peter Wiernik, internal medicine and oncology; Arthur Heller, internal medicine; Amy Chadburn, pathologist; Morton Coleman, internal medicine, hematology and |
| oncology.9. . | oncology.9. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally10. . | Witness—Generally10. PJI 1:22. |
| Falsus in Uno (Transcript page A-1077—The court substitutes “unworthy of belief” for | Falsus in Uno (Transcript page A-1077—The court substitutes “unworthy of belief” for |
| “unbelievable.”)11. . | “unbelievable.”)11. PJI 1:24. |
| Return to Courtroom (Transcript page A-1078—The court omits “or have such question | Return to Courtroom (Transcript page A-1078—The court omits “or have such question |
| answered.”)12. . | answered.”)12. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits13. . | Exhibits13. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict14. . | Verdict14. PJI 1:27. |
| Exclude | Exclude |
| Sympathy15. . | Sympathy15. PJI 1:23. |
| Burden of | Burden of |
| Proof16. . | Proof16. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined—Generally (Transcript page A-1080—The court adds, after “reasonably prudent person,” “in this case a | Common Law Standard of Care—Negligence Defined—Generally (Transcript page A-1080—The court adds, after “reasonably prudent person,” “in this case a |
| doctor.”)17. . | doctor.”)17. PJI 2:12. |
| Common Law Standard of Care—Foreseeability—Generally (Transcript page A-1080—The court replaces the word “person” with | Common Law Standard of Care—Foreseeability—Generally (Transcript page A-1080—The court replaces the word “person” with |
| “doctor.”)18. . | “doctor.”)18. PJI 2:70. |
| Proximate Cause—In General (Transcript page A-1081—The court adds:)That is to say, the plaintiff must show that it is more probable than not that the defendant's conduct was the cause of the plaintiff's injury and subsequent | Proximate Cause—In General (Transcript page A-1081—The court adds:)That is to say, the plaintiff must show that it is more probable than not that the defendant's conduct was the cause of the plaintiff's injury and subsequent |
| death.19. . | death.19. PJI 2:150. |
| Malpractice—Physician (Transcript page A-1081 to 1083—The court includes a paragraph on medically acceptable alternatives; omits language on minimum | Malpractice—Physician (Transcript page A-1081 to 1083—The court includes a paragraph on medically acceptable alternatives; omits language on minimum |
| standards.)20. . | standards.)20. PJI 2:277. |
| Damages—General (Transcript page A-1084—The court adds information on this case.)Plaintiff Daniel Papa is the executor of the estate of Ellen Papa. As executor, the plaintiff makes two claims. The first claim is damages for the death of Ellen Papa, and the second claim seeks damages for the injuries and losses which were sustained by Ellen Papa before she died. You must separately consider each of these | Damages—General (Transcript page A-1084—The court adds information on this case.)Plaintiff Daniel Papa is the executor of the estate of Ellen Papa. As executor, the plaintiff makes two claims. The first claim is damages for the death of Ellen Papa, and the second claim seeks damages for the injuries and losses which were sustained by Ellen Papa before she died. You must separately consider each of these |
| claims.21. . | claims.21. PJI 2:320. |
| Damages—Action for Wrongful Death and Conscious Pain (The court adheres closely to this instruction, with some small variations:)(Transcript page A-1088—Regarding funeral expenses and pain and suffering, the court instructs:)You will make a separate award for those reasonable expenses which were paid by the spouse or the estate, in this case, for expenses incurred such as the funeral, and that's what we have is just the funeral expenses.As to the claim for damages sustained by Ellen Papa before she died, which is the second claim I mentioned to you earlier, plaintiff is entitled to recover such sum as you find will fairly and justly compensate for the pain and suffering actually endured by Ellen Papa during such time as she was conscious from the moment of—well, from the moment of the diagnosis or the failure to diagnose her condition to the moment of death.(Transcript page A-1089—Regarding the period of lost earnings:)Such amount for loss of earnings as you find Ellen Papa would have earned between the date of the onset of her disease and the date of death had she not died.(Transcript page A-1086 to 1087—The court errs in confusing “life expectancy” and “work expectancy;” the error is pointed out by counsel, and corrected at instruction 32, below.)Ellen Papa was, at time of her death, 43 years old. According to the life expectancy tables, her life expectancy was 39.1 years.* * *As to the life expectancy of Ellen Papa, it was, according to work expectancy tables, 39.9 years. That figure, like the life expectancy table figures I mentioned earlier, is only a statistical average and is used simply as a | Damages—Action for Wrongful Death and Conscious Pain (The court adheres closely to this instruction, with some small variations:)(Transcript page A-1088—Regarding funeral expenses and pain and suffering, the court instructs:)You will make a separate award for those reasonable expenses which were paid by the spouse or the estate, in this case, for expenses incurred such as the funeral, and that's what we have is just the funeral expenses.As to the claim for damages sustained by Ellen Papa before she died, which is the second claim I mentioned to you earlier, plaintiff is entitled to recover such sum as you find will fairly and justly compensate for the pain and suffering actually endured by Ellen Papa during such time as she was conscious from the moment of—well, from the moment of the diagnosis or the failure to diagnose her condition to the moment of death.(Transcript page A-1089—Regarding the period of lost earnings:)Such amount for loss of earnings as you find Ellen Papa would have earned between the date of the onset of her disease and the date of death had she not died.(Transcript page A-1086 to 1087—The court errs in confusing “life expectancy” and “work expectancy;” the error is pointed out by counsel, and corrected at instruction 32, below.)Ellen Papa was, at time of her death, 43 years old. According to the life expectancy tables, her life expectancy was 39.1 years.* * *As to the life expectancy of Ellen Papa, it was, according to work expectancy tables, 39.9 years. That figure, like the life expectancy table figures I mentioned earlier, is only a statistical average and is used simply as a |
| guide.22. . | guide.22. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page A-1085 to 1086—The court inserts the following instruction into | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page A-1085 to 1086—The court inserts the following instruction into |
| :)Life | PJI 2:320:)Life |
| expectancy tables are simply statistical averages, it neither guarantees that a person might live longer or die sooner than the time indicated by those tables. The figures I just mentioned to you are not controlling but may be considered by you together with the evidence you heard concerning the health, habits, employment and activities of Ellen Papa prior to her death, and those are of Daniel, her husband, and the two children in determining what their respective life expectancies were at the time Ellen Papa | expectancy tables are simply statistical averages, it neither guarantees that a person might live longer or die sooner than the time indicated by those tables. The figures I just mentioned to you are not controlling but may be considered by you together with the evidence you heard concerning the health, habits, employment and activities of Ellen Papa prior to her death, and those are of Daniel, her husband, and the two children in determining what their respective life expectancies were at the time Ellen Papa |
| died.23. . | died.23. PJI 2:320.5. |
| Damages—Action for Wrongful Death and Conscious Pain [Supplemental | Damages—Action for Wrongful Death and Conscious Pain [Supplemental |
| Instruction]24. . | Instruction]24. PJI 1:77. |
| General Instruction—Evidence—Failure to Produce Documents (Transcript page A-1090 to 1091—The court refers to a failure to produce income tax returns and funeral bills, before giving the “strongest inference” language:)The failure of the plaintiffs to produce income tax returns or W-2 forms and a funeral bill cannot be the basis of an inference against the plaintiffs unless you are satisfied from the evidence in this case that these conditions have been met. First, that there is a document in plaintiff's possession which relates, in an important way, to the issue of her loss of wages or amount of the funereal bill; and, second, that the plaintiffs have not offered a reasonable explanation for failure to produce those documents, but if these two conditions are met, you may in weighing the evidence, although you are not required to infer, that the documents, if produced, would not have supported the plaintiffs on that | General Instruction—Evidence—Failure to Produce Documents (Transcript page A-1090 to 1091—The court refers to a failure to produce income tax returns and funeral bills, before giving the “strongest inference” language:)The failure of the plaintiffs to produce income tax returns or W-2 forms and a funeral bill cannot be the basis of an inference against the plaintiffs unless you are satisfied from the evidence in this case that these conditions have been met. First, that there is a document in plaintiff's possession which relates, in an important way, to the issue of her loss of wages or amount of the funereal bill; and, second, that the plaintiffs have not offered a reasonable explanation for failure to produce those documents, but if these two conditions are met, you may in weighing the evidence, although you are not required to infer, that the documents, if produced, would not have supported the plaintiffs on that |
| question.25. . | question.25. PJI 2:320.5. |
| Damages—Action for Wrongful Death and Conscious Pain [Supplemental | Damages—Action for Wrongful Death and Conscious Pain [Supplemental |
| Instruction]26. . | Instruction]26. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page A-1019—The court omits “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that she has suffered.” The court adds:)In determining the amount, if any, to be awarded to plaintiffs, to the estate of Ellen Papa for her pain and suffering, you may take into consideration the effect that Ellen Papa's condition may have had on her ability to enjoy life up to the time of her death. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which were part of a person's life before the onset of that injury, and to experience the pleasures of life.If you find that Ellen Papa as a result of the defendant's failure to diagnose her cancer suffered some loss of the ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to her estate for pain and suffering up to the date of her | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page A-1019—The court omits “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that she has suffered.” The court adds:)In determining the amount, if any, to be awarded to plaintiffs, to the estate of Ellen Papa for her pain and suffering, you may take into consideration the effect that Ellen Papa's condition may have had on her ability to enjoy life up to the time of her death. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which were part of a person's life before the onset of that injury, and to experience the pleasures of life.If you find that Ellen Papa as a result of the defendant's failure to diagnose her cancer suffered some loss of the ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to her estate for pain and suffering up to the date of her |
| death.27. . | death.27. PJI 2:315. |
| Damages—Derivative Action Re Spouse—Loss of Services (Transcript page A-1092—The court adds, after “loss of his spousal services and society,” the following:)Though this is sometimes referred to as loss of service, it encompasses not only services but also such elements as love, companionship, affection, society, and sexual relations.(The court replaces “before the injury” with “prior to her death.” The court replaces “extent to which the injuries sustained prevented her” with “extent to which the injuries sustained in the incident incapacitated her.” The court replaces “inability to perform such services and provide such society as a result of her injuries” with “inability to provide such society as a result of her | Damages—Derivative Action Re Spouse—Loss of Services (Transcript page A-1092—The court adds, after “loss of his spousal services and society,” the following:)Though this is sometimes referred to as loss of service, it encompasses not only services but also such elements as love, companionship, affection, society, and sexual relations.(The court replaces “before the injury” with “prior to her death.” The court replaces “extent to which the injuries sustained prevented her” with “extent to which the injuries sustained in the incident incapacitated her.” The court replaces “inability to perform such services and provide such society as a result of her injuries” with “inability to provide such society as a result of her |
| death.”28. . | death.”28. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In General (Transcript page A-1093 to 1094—The court adapts the pattern instruction to these facts:)Plaintiffs' estate is entitled to be reimbursed for any earnings lost as a result of her cancer caused by the defendants malpractice and/or negligence from the time of the failure to diagnose up to the present time. Moreover, if you find that as a result of those—I should say up to the time of her death. Moreover, if you find that as a result—strike that.However, if you find that as a result of her death, that there was a loss suffered that reduces her capacity to earn money during the course—in the future, she would have continued to work in the future, then the estate is also entitled to be reimbursed for loss of future earnings that she would have earned had she not died. Any award you make for earnings lost to date must not be the result of speculation. Any award must be calculated from the number of days that you find Ellen Papa was disabled from working by her condition and the amount that you find Ellen Papa would have earned had she not | Damages—Personal Injury—Loss of Earnings—In General (Transcript page A-1093 to 1094—The court adapts the pattern instruction to these facts:)Plaintiffs' estate is entitled to be reimbursed for any earnings lost as a result of her cancer caused by the defendants malpractice and/or negligence from the time of the failure to diagnose up to the present time. Moreover, if you find that as a result of those—I should say up to the time of her death. Moreover, if you find that as a result—strike that.However, if you find that as a result of her death, that there was a loss suffered that reduces her capacity to earn money during the course—in the future, she would have continued to work in the future, then the estate is also entitled to be reimbursed for loss of future earnings that she would have earned had she not died. Any award you make for earnings lost to date must not be the result of speculation. Any award must be calculated from the number of days that you find Ellen Papa was disabled from working by her condition and the amount that you find Ellen Papa would have earned had she not |
| died.29. . | died.29. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (income | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (income |
| taxes)30. . | taxes)30. PJI 1:97. |
| General Instruction—Special Verdicts (Transcript page A-1094 to 1095—The court adds a review of the verdict sheet:)As you will note from the wording of the questions, you need not consider question (1b)—let's say at this stage, if your answer to question number (1a) is “no,”—the first question deals with, (1a): Did the defendant depart from good and accepted medical practice by failing to perform or order proper tests to determine and considers night sweats?It calls for a yes or no.If you answer “no,” you report back to the Court. If you answer “yes,” you go to question (1b).Question (1b):Was said departure a substantial factor in causing the death of Ellen Papa?I told you about substantial factors and proximate cause before. Again, that calls for a yes or no answer. If you answer “no” to that question, you report back to the Court. Only if you answer “yes” to parts A and B of question number 1 will you go to question number 2. And question number 2 is where the damages issue comes in.So, if you find that the defendant was negligent you, of course, would have to answer “yes” to both parts of question 1. If you find there was no negligence, you would answer “no” to one or both parts. Well, actually, it's a “no” to one of the parts of question 1.Just follow the instructions. It will be very clear to you. It's on the verdict sheet.I am not going to discuss the damages because I already discussed those issues with you before.When you have answered all the questions which require answers, report to the Court.Do not assume from the questions, or from the wording of the questions, or from my instructions on them, what the answer should | General Instruction—Special Verdicts (Transcript page A-1094 to 1095—The court adds a review of the verdict sheet:)As you will note from the wording of the questions, you need not consider question (1b)—let's say at this stage, if your answer to question number (1a) is “no,”—the first question deals with, (1a): Did the defendant depart from good and accepted medical practice by failing to perform or order proper tests to determine and considers night sweats?It calls for a yes or no.If you answer “no,” you report back to the Court. If you answer “yes,” you go to question (1b).Question (1b):Was said departure a substantial factor in causing the death of Ellen Papa?I told you about substantial factors and proximate cause before. Again, that calls for a yes or no answer. If you answer “no” to that question, you report back to the Court. Only if you answer “yes” to parts A and B of question number 1 will you go to question number 2. And question number 2 is where the damages issue comes in.So, if you find that the defendant was negligent you, of course, would have to answer “yes” to both parts of question 1. If you find there was no negligence, you would answer “no” to one or both parts. Well, actually, it's a “no” to one of the parts of question 1.Just follow the instructions. It will be very clear to you. It's on the verdict sheet.I am not going to discuss the damages because I already discussed those issues with you before.When you have answered all the questions which require answers, report to the Court.Do not assume from the questions, or from the wording of the questions, or from my instructions on them, what the answer should |
| be.31. . | be.31. PJI 1:28. |
| Conclusion32. Regarding | Conclusion32. Regarding |
| PJI 2:320 |
| (Damages—Action for Wrongful Death and Conscious Pain) (see Instruction 21) (Transcript page A-1097—Counsel asks for clarification about work expectancy:)MR. ELLIOTT: I would like to clarify the worklife expectancy figure that you gave the jury. I think you said 39 years.THE COURT: Thirty-nine?MR. ELLIOTT: Is that worklife or life expectancy?THE COURT: Work.MR. ELLIOTT: I think that is longer than it should be because she was 43 at the date of her death. She would be working until —THE COURT: She was what, 41?MR. ROSNER: Forty-three.MR. ELLIOTT: Forty-three at the time of her death.THE COURT: You're right. You're right. It's 13.7. I looked at the life expectancy. Want me to tell them?MR. ELLIOTT: Would you mind?THE COURT: These numbers weren't —COURT OFFICER: You want the whole jury panel back?THE COURT: Anything else?MR. ROSNER: None from the plaintiff, your Honor.MR. ELLIOTT: Other than was previously objected to yesterday, whatever record we made.THE COURT: Whatever is on the record is on the record.What did I tell them?MR. ROSNER: 39.1.COURT OFFICER: Jury entering.(Jury entered the courtroom.)THE COURT: Okay.COURT OFFICER: Take seats.THE COURT: I had mentioned to you the—I gave you the wrong number before. I mentioned Ellen Papa's worklife expectancy. I think I said it was 39.9. I made a mistake. It's 13.7 years. Okay. With that, go into the jury room, get started with the deliberations.C. Case Documents Available on Westlaw1.On appeal: Papa v. Sarnataro, 17 A.D.3d 430, 792 N.Y.S.2d 613 (2d Dep't 2005) | (Damages—Action for Wrongful Death and Conscious Pain) (see Instruction 21) (Transcript page A-1097—Counsel asks for clarification about work expectancy:)MR. ELLIOTT: I would like to clarify the worklife expectancy figure that you gave the jury. I think you said 39 years.THE COURT: Thirty-nine?MR. ELLIOTT: Is that worklife or life expectancy?THE COURT: Work.MR. ELLIOTT: I think that is longer than it should be because she was 43 at the date of her death. She would be working until —THE COURT: She was what, 41?MR. ROSNER: Forty-three.MR. ELLIOTT: Forty-three at the time of her death.THE COURT: You're right. You're right. It's 13.7. I looked at the life expectancy. Want me to tell them?MR. ELLIOTT: Would you mind?THE COURT: These numbers weren't —COURT OFFICER: You want the whole jury panel back?THE COURT: Anything else?MR. ROSNER: None from the plaintiff, your Honor.MR. ELLIOTT: Other than was previously objected to yesterday, whatever record we made.THE COURT: Whatever is on the record is on the record.What did I tell them?MR. ROSNER: 39.1.COURT OFFICER: Jury entering.(Jury entered the courtroom.)THE COURT: Okay.COURT OFFICER: Take seats.THE COURT: I had mentioned to you the—I gave you the wrong number before. I mentioned Ellen Papa's worklife expectancy. I think I said it was 39.9. I made a mistake. It's 13.7 years. Okay. With that, go into the jury room, get started with the deliberations.C. Case Documents Available on Westlaw1.On appeal: Papa v. Sarnataro, 17 A.D.3d 430, 792 N.Y.S.2d 613 (2d Dep't 2005) |
| (, )Appellate | (reversed, new trial granted)Appellate |
| Brief, 2004 WL 3718353Trial Pleading (Answer to Amended Complaint), 1999 WL 34561323Trial Pleading (Amended Summons), 1999 WL 34561324Trial Pleading (Amended Summons), 1999 WL 34803540Jury Instruction, 2003 WL 24574404Expert Trial Transcript, 2003 WL 24574406Expert Trial Transcript, 2003 WL 24574668Expert Trial Transcript, 2003 WL 24574407Expert Trial Transcript, 2003 WL 24574669Expert Trial Transcript, 1997 WL 34467545Expert Trial Transcript, 1997 WL 34467546Partial Expert Testimony, | Brief, 2004 WL 3718353Trial Pleading (Answer to Amended Complaint), 1999 WL 34561323Trial Pleading (Amended Summons), 1999 WL 34561324Trial Pleading (Amended Summons), 1999 WL 34803540Jury Instruction, 2003 WL 24574404Expert Trial Transcript, 2003 WL 24574406Expert Trial Transcript, 2003 WL 24574668Expert Trial Transcript, 2003 WL 24574407Expert Trial Transcript, 2003 WL 24574669Expert Trial Transcript, 1997 WL 34467545Expert Trial Transcript, 1997 WL 34467546Partial Expert Testimony, |
| 2.Sample | 1997 WL 344675832.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:4 Medical malpractice/Knee ligament deterioration/One plaintiff, one individual and one corporate defendantA. BackgroundType of Case: Medical MalpracticeType of Injury: Knee ligament deterioration after surgery for torn ligamentCase Name: Deena Casiero, Plaintiff, v. David T. Stamer, M.D. and Orthopedic Associates of Dutchess County, P.C., Defendants.Court: Supreme Court of New York, Orange CountyJudge: Joseph G. OwenDocket Number: 4062/99Verdict Date: May 24, 2002 (first verdict)Outcome: Verdict for defense; reversed on appeal, new trial granted; at second trial, verdict also for defenseBrief Summary of Facts: Defendant physician performed surgery to remedy injuries to plaintiff's knee (torn anterior-cruciate ligament and medical meniscus) suffered during a hockey game. Defendant allegedly fractured plaintiff's patella during surgery, and sought to stabilize the fracture by inserting two interfragmentary screws which were later found to protrude into the knee joint, causing pain and an arthritic condition, interfering with success of original knee surgery, and requiring two further surgeries. Plaintiff claimed the screw was too long. Defendant physician and his employer denied departing from the standard of care, claimed the screw was not the cause of plaintiff's pain, which was not documented until 20 months after surgery, and that the arthritic condition was attributable to a degenerative condition caused by the initial injury.Verdict for the defendants was reversed on appeal, because of an error in admitting a surgeon's opinion that numerous famous athletes, none of whom he treated, developed degenerative arthritis as a result of traumatic knee injuries. The error was said to have likely affected the outcome, since the jury found that the surgeon had departed from the accepted standards of medical practice, but that the departure was not a substantial factor in causing the patient's injuries.After second trial, the verdict was again for the defendants.B. Jury Instructions Given by the | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:4 Medical malpractice/Knee ligament deterioration/One plaintiff, one individual and one corporate defendantA. BackgroundType of Case: Medical MalpracticeType of Injury: Knee ligament deterioration after surgery for torn ligamentCase Name: Deena Casiero, Plaintiff, v. David T. Stamer, M.D. and Orthopedic Associates of Dutchess County, P.C., Defendants.Court: Supreme Court of New York, Orange CountyJudge: Joseph G. OwenDocket Number: 4062/99Verdict Date: May 24, 2002 (first verdict)Outcome: Verdict for defense; reversed on appeal, new trial granted; at second trial, verdict also for defenseBrief Summary of Facts: Defendant physician performed surgery to remedy injuries to plaintiff's knee (torn anterior-cruciate ligament and medical meniscus) suffered during a hockey game. Defendant allegedly fractured plaintiff's patella during surgery, and sought to stabilize the fracture by inserting two interfragmentary screws which were later found to protrude into the knee joint, causing pain and an arthritic condition, interfering with success of original knee surgery, and requiring two further surgeries. Plaintiff claimed the screw was too long. Defendant physician and his employer denied departing from the standard of care, claimed the screw was not the cause of plaintiff's pain, which was not documented until 20 months after surgery, and that the arthritic condition was attributable to a degenerative condition caused by the initial injury.Verdict for the defendants was reversed on appeal, because of an error in admitting a surgeon's opinion that numerous famous athletes, none of whom he treated, developed degenerative arthritis as a result of traumatic knee injuries. The error was said to have likely affected the outcome, since the jury found that the surgeon had departed from the accepted standards of medical practice, but that the departure was not a substantial factor in causing the patient's injuries.After second trial, the verdict was again for the defendants.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits5. . | Exhibits5. PJI 1:27. |
| Exclude | Exclude |
| Sympathy6. . | Sympathy6. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally7. . | Witness—Generally7. PJI 1:90. |
| General Instruction—Expert Witness (Transcript page 651—The court prefaces the pattern instruction with:)In this case there were two expert witnesses who testified, and you'll recall that the one witness was Charles Krinick, M.D., and he gave his qualifications as an orthopedic surgeon; and the other was Steven Zelicof, M.D., who gave his qualifications as an orthopedic surgeon; they each gave their opinions concerning the issues in this | General Instruction—Expert Witness (Transcript page 651—The court prefaces the pattern instruction with:)In this case there were two expert witnesses who testified, and you'll recall that the one witness was Charles Krinick, M.D., and he gave his qualifications as an orthopedic surgeon; and the other was Steven Zelicof, M.D., who gave his qualifications as an orthopedic surgeon; they each gave their opinions concerning the issues in this |
| case.8. . | case.8. PJI 1:94. |
| General Instruction—Use of Pre-Trial Deposition Upon | General Instruction—Use of Pre-Trial Deposition Upon |
| Trial9. . | Trial9. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different | General Instruction—Burden of Proof—When Burden Differs on Different |
| Issues10. . | Issues10. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally11. . | Defined—Generally11. PJI 2:70. |
| Proximate Cause—In General (Transcript pages 656, 673 to 674—The court initially omitted the optional part of the pattern instruction, but adds it later (instruction 25) at the request of plaintiff's attorney:)There may be more than one cause of an injury, but to be substantial it cannot be slight or trivial. You may, however, decide that a cause is substantial, even if you assign a relatively small percentage to it, if you find that there are other substantial | Proximate Cause—In General (Transcript pages 656, 673 to 674—The court initially omitted the optional part of the pattern instruction, but adds it later (instruction 25) at the request of plaintiff's attorney:)There may be more than one cause of an injury, but to be substantial it cannot be slight or trivial. You may, however, decide that a cause is substantial, even if you assign a relatively small percentage to it, if you find that there are other substantial |
| causes.12. . Malpractice—Physician13. . | causes.12. PJI 2:150. Malpractice—Physician13. PJI 2:36. |
| Comparative | Comparative |
| Fault14. . | Fault14. PJI 2:36.2. |
| Comparative Negligence—Bifurcated Trial [Supplemental | Comparative Negligence—Bifurcated Trial [Supplemental |
| Instruction]15. . Damages—General16. . | Instruction]15. PJI 2:277. Damages—General16. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering17. . | Suffering17. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction]Author's Comment: PJI 280.1 concerns hedonic damages and should be given in any action in which the plaintiff has presented evidence on the issue of loss of enjoyment of life as an element of pain and suffering. 1B | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction]Author's Comment: PJI 280.1 concerns hedonic damages and should be given in any action in which the plaintiff has presented evidence on the issue of loss of enjoyment of life as an element of pain and suffering. 1B |
| , | NY PJI3d 2:280, |
| at 909 | at 909 |
| (2018).18. . | (2018).18. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 662—modified by adding plaintiff's life expectancy:)In accordance with the statistical life expectancy tables the plaintiff has a life expectancy of some 55.4 years. Such a table, however, provides nothing more than a statistical average, it neither guarantees that the plaintiff will live an additional 55.4 years or means that she will not live for a longer | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 662—modified by adding plaintiff's life expectancy:)In accordance with the statistical life expectancy tables the plaintiff has a life expectancy of some 55.4 years. Such a table, however, provides nothing more than a statistical average, it neither guarantees that the plaintiff will live an additional 55.4 years or means that she will not live for a longer |
| period.19. . | period.19. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (Transcript page 662—modified, no instruction for future medical expenses.)The plaintiff is entitled to recover an amount for reasonable expenditures for medical services and medicines, including physician's charges, nurse's charges, hospital expenses, diagnostic expenses and X-ray charges incurred up to the date of your verdict.If you decide for the plaintiff on the question of liability you will include in your verdict the amount that you find in the evidence to be the fair and reasonable amount of the medical expenses necessarily incurred by the plaintiff as a result of the plaintiff's injuries to | Damages—Personal Injury—Expenses Incurred (Transcript page 662—modified, no instruction for future medical expenses.)The plaintiff is entitled to recover an amount for reasonable expenditures for medical services and medicines, including physician's charges, nurse's charges, hospital expenses, diagnostic expenses and X-ray charges incurred up to the date of your verdict.If you decide for the plaintiff on the question of liability you will include in your verdict the amount that you find in the evidence to be the fair and reasonable amount of the medical expenses necessarily incurred by the plaintiff as a result of the plaintiff's injuries to |
| date.20. | date.20. PJI 2:151A(1) |
| Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized Verdict (Transcript page | Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized Verdict (Transcript page |
| 662—modified.)21. . | 662—modified.)21. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental |
| Instruction]22. . | Instruction]22. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict23. . | Verdict23. PJI 1:97. |
| General Instruction—Special Verdicts (Transcript pages 664 to 668—The court reviews each item on the verdict sheet, and comments:)Well, you know, years ago all they had was—the jury didn't even have these jury verdict sheets, just asked the jury do you find for the plaintiff or the defendant; if you find for the plaintiff what's the total amount. But then they came up with the jury verdict sheets and then they asked for the total amount and then, afterward, they said well, look, if the jury found a total amount then we want to know what the breakdown is, what were they thinking, how much did they find up to the date of verdict and how much did they decide for the future, so then we added the next two | General Instruction—Special Verdicts (Transcript pages 664 to 668—The court reviews each item on the verdict sheet, and comments:)Well, you know, years ago all they had was—the jury didn't even have these jury verdict sheets, just asked the jury do you find for the plaintiff or the defendant; if you find for the plaintiff what's the total amount. But then they came up with the jury verdict sheets and then they asked for the total amount and then, afterward, they said well, look, if the jury found a total amount then we want to know what the breakdown is, what were they thinking, how much did they find up to the date of verdict and how much did they decide for the future, so then we added the next two |
| questions.24. . | questions.24. PJI 1:24. |
| Return to Courtroom (Transcript pages 670 to 671—The court adds:)You recall that I said that some exhibits are marked for identification, only, and then others are marked in evidence; only those that are marked in evidence can you see, of course, because the ones for identification, only, are not in evidence in the case. So if you want any or all of the exhibits that were marked in evidence just write down what you want and I'll send it in; whatever is in evidence, of course, if it is not in evidence I'm not going to send it | Return to Courtroom (Transcript pages 670 to 671—The court adds:)You recall that I said that some exhibits are marked for identification, only, and then others are marked in evidence; only those that are marked in evidence can you see, of course, because the ones for identification, only, are not in evidence in the case. So if you want any or all of the exhibits that were marked in evidence just write down what you want and I'll send it in; whatever is in evidence, of course, if it is not in evidence I'm not going to send it |
| in.25. . | in.25. PJI 1:28. |
| Conclusion (Transcript page 671—The court modifies the pattern instruction to account for fact that jury would not begin deliberations until following | Conclusion (Transcript page 671—The court modifies the pattern instruction to account for fact that jury would not begin deliberations until following |
| morning.)26. . | morning.)26. PJI 2:70. |
| Proximate Cause—In General (Transcript pages 673 to 674—The court adds further instruction on proximate cause. See instruction | Proximate Cause—In General (Transcript pages 673 to 674—The court adds further instruction on proximate cause. See instruction |
| 11.)27. . | 11.)27. PJI 1:11. |
| Discussion With Others—Independent Research (Transcript page 675—The court omits “Do not try to do any independent research on any topic you might hear about in the testimony, whether by consulting others, reading books or magazines or conducting an internet | Discussion With Others—Independent Research (Transcript page 675—The court omits “Do not try to do any independent research on any topic you might hear about in the testimony, whether by consulting others, reading books or magazines or conducting an internet |
| search.”)28. . | search.”)28. PJI 1:13. |
| Conversation With Parties or AttorneysAuthor's Comment: Under Judiciary Law § 753, a court may punish a juror for civil contempt “for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding; or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court. . ..” See generally 1A | Conversation With Parties or AttorneysAuthor's Comment: Under Judiciary Law § 753, a court may punish a juror for civil contempt “for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding; or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court. . ..” See generally 1A |
| , | NY PJI3d 1:13, |
| at 43 (2018).C. Case Documents Available on Westlaw1.On appeal: Casiero v. Stamer, 308 A.D.2d 499, 764 N.Y.S.2d 470 (2d Dep't 2003) | at 43 (2018).C. Case Documents Available on Westlaw1.On appeal: Casiero v. Stamer, 308 A.D.2d 499, 764 N.Y.S.2d 470 (2d Dep't 2003) |
| (, )Verdict | (reversed, new trial granted)Verdict |
| and Settlement Summary (Second trial), 2004 WL 2160831Verdict and Settlement Summary (First trial), 2002 WL 33340552Verdict and Settlement Summary (First trial), 2002 WL 1919422Verdict, Agreement and Settlement (Verdict Sheet, 2d trial), 2004 WL 4056253Jury Instructions (First trial), 2002 WL 33118435Verdict, Agreement and Settlement (Verdict sheet, 1st trial), 2002 WL 33118432Expert Trial Transcript (Ronald Krinick, M.D.), 2002 WL 33809094Documents below are from first trial:Trial Motion, Memorandum and Affidavit (Affirmation in Support), 2001 WL 35722030Trial Pleading (Amended Verified Answer), 2000 WL 35015191Trial Pleading(Amended Verified Answer), 2000 WL 35488292Trial Pleading (Verified Answer), 1999 WL 34545592Trial Pleading (Verified Complaint), 1999 WL 34545593Trial Pleading (Verified Complaint), 1999 WL 34678698Expert Trial Transcript (Ronald Krinick, M.D.), 1999 WL 34242798Expert Trial Transcript (Steven Zelicof, M.D.), 1999 WL 34242799Expert Trial Transcript (Steven Zelicof, M.D.), 1999 WL 346594272.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | and Settlement Summary (Second trial), 2004 WL 2160831Verdict and Settlement Summary (First trial), 2002 WL 33340552Verdict and Settlement Summary (First trial), 2002 WL 1919422Verdict, Agreement and Settlement (Verdict Sheet, 2d trial), 2004 WL 4056253Jury Instructions (First trial), 2002 WL 33118435Verdict, Agreement and Settlement (Verdict sheet, 1st trial), 2002 WL 33118432Expert Trial Transcript (Ronald Krinick, M.D.), 2002 WL 33809094Documents below are from first trial:Trial Motion, Memorandum and Affidavit (Affirmation in Support), 2001 WL 35722030Trial Pleading (Amended Verified Answer), 2000 WL 35015191Trial Pleading(Amended Verified Answer), 2000 WL 35488292Trial Pleading (Verified Answer), 1999 WL 34545592Trial Pleading (Verified Complaint), 1999 WL 34545593Trial Pleading (Verified Complaint), 1999 WL 34678698Expert Trial Transcript (Ronald Krinick, M.D.), 1999 WL 34242798Expert Trial Transcript (Steven Zelicof, M.D.), 1999 WL 34242799Expert Trial Transcript (Steven Zelicof, M.D.), 1999 WL 346594272.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , | 7:15, 7:85, |
| 7:209; 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:5 Medical malpractice/Secondary bleeding from tonsillectomy/Two plaintiffs, four defendantsA. BackgroundType of Case: Medical malpractice; wrongful deathType of Injury: Death, after tonsillectomy caused bleeding.Case Name: Richard Quesada and Tina Quesada, as Administrators for Richard Matthew Quesada, deceased and Richard Quesada and Tina Quesada, individually, Plaintiffs, v. Orange Otolarynology a/k/a Hudson Valley Ear, Nose, & Throat, P.C., Horton Medical Center, Lawrence J. Gordon, M.D. and Richard R. DeMaio, M.D., Defendants.Court: Supreme Court of New York, Dutchess CountyJudge: Thomas J. DolanDocket Number: 2614/01Verdict Date: April 6, 2004Outcome: Verdict for defendantBrief Summary of Facts: Plaintiffs decedent, age 7, underwent an adenoidectomy and tonsillectomy. The procedure was performed by defendant Dr. Gordon. The surgery was originally scheduled as a single-day procedure, but the decedent was retained until the following day because Gordon believed that he was not consuming enough fluids. Intravenous fluids were administered throughout that evening. Decedent was discharged from hospital the next day. Decedent coughed up blood on the way home, but Gordon recommended rest and cough medicine. The next day, decedent coughed up more blood, and was examined by Gordon's associate, defendant Dr. DeMaio, who detected a clot and an adenoidal discharge, DeMaio removed the clot and prescribed rest and soft foods. Decedent coughed up more blood and went back to DeMaio, who prescribed a spray to constrict blood vessels.Decedent did not bleed or vomit again until six days later when he awoke bleeding profusely from his throat and vomiting blood. His mother called for an ambulance, but decedent was in cardiac arrest by the time the ambulance arrived. He was revived and began bleeding again. A ligation was performed, which stopped the bleeding, but the decedent was brain-dead. Plaintiffs stopped life support. An autopsy revealed that the bleeding stemmed from an open artery in his left tonsil bed.Plaintiffs claim that the need for arterial ligation was evident when decedent bled shortly after leaving hospital after the tonsillectomy, and that Gordon and DeMaio were negligent for not doing blood work to reveal extent of bleeding. They sought to recover for decedent's pre-death pain and suffering. They also presented loss-of-services claims.B. Jury Instructions Proposed by | 7:209; 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:5 Medical malpractice/Secondary bleeding from tonsillectomy/Two plaintiffs, four defendantsA. BackgroundType of Case: Medical malpractice; wrongful deathType of Injury: Death, after tonsillectomy caused bleeding.Case Name: Richard Quesada and Tina Quesada, as Administrators for Richard Matthew Quesada, deceased and Richard Quesada and Tina Quesada, individually, Plaintiffs, v. Orange Otolarynology a/k/a Hudson Valley Ear, Nose, & Throat, P.C., Horton Medical Center, Lawrence J. Gordon, M.D. and Richard R. DeMaio, M.D., Defendants.Court: Supreme Court of New York, Dutchess CountyJudge: Thomas J. DolanDocket Number: 2614/01Verdict Date: April 6, 2004Outcome: Verdict for defendantBrief Summary of Facts: Plaintiffs decedent, age 7, underwent an adenoidectomy and tonsillectomy. The procedure was performed by defendant Dr. Gordon. The surgery was originally scheduled as a single-day procedure, but the decedent was retained until the following day because Gordon believed that he was not consuming enough fluids. Intravenous fluids were administered throughout that evening. Decedent was discharged from hospital the next day. Decedent coughed up blood on the way home, but Gordon recommended rest and cough medicine. The next day, decedent coughed up more blood, and was examined by Gordon's associate, defendant Dr. DeMaio, who detected a clot and an adenoidal discharge, DeMaio removed the clot and prescribed rest and soft foods. Decedent coughed up more blood and went back to DeMaio, who prescribed a spray to constrict blood vessels.Decedent did not bleed or vomit again until six days later when he awoke bleeding profusely from his throat and vomiting blood. His mother called for an ambulance, but decedent was in cardiac arrest by the time the ambulance arrived. He was revived and began bleeding again. A ligation was performed, which stopped the bleeding, but the decedent was brain-dead. Plaintiffs stopped life support. An autopsy revealed that the bleeding stemmed from an open artery in his left tonsil bed.Plaintiffs claim that the need for arterial ligation was evident when decedent bled shortly after leaving hospital after the tonsillectomy, and that Gordon and DeMaio were negligent for not doing blood work to reveal extent of bleeding. They sought to recover for decedent's pre-death pain and suffering. They also presented loss-of-services claims.B. Jury Instructions Proposed by |
| Defendant1. . | Defendant1. PJI 2:150. |
| Malpractice—Physician (In addition to | Malpractice—Physician (In addition to |
| , | PJI 2:150, the |
| defendant requests the following:)It is also requested that the Court deliver the following charges in order to further explain the concept of malpractice as it applies to this particular case:(a) The mere fact that the plaintiff had an untoward result from surgery does not give rise to a finding of negligence and the jury should be so instructed as follows:The physician is not a guarantor of a good result and cannot be held liable merely because a bad result followed his treatment. | defendant requests the following:)It is also requested that the Court deliver the following charges in order to further explain the concept of malpractice as it applies to this particular case:(a) The mere fact that the plaintiff had an untoward result from surgery does not give rise to a finding of negligence and the jury should be so instructed as follows:The physician is not a guarantor of a good result and cannot be held liable merely because a bad result followed his treatment. |
| (). | (Antowill v. Friedman, 197 App.Div. 230, 188 N.Y.S. 777). |
| The reason for this rule is that the difficulties and uncertainties in the practice of medicine are such that no practitioner can be required to guarantee good results. The defendants are not responsible for an unsuccessful result unless the same can be attributed to negligence on his part.(b) There may have been presented conflicting testimony as to which surgical method should have been chosen by the defendant in performing the operation. The jury should be instructed that the use of any of the accepted surgical methods is proper and it is not malpractice to choose one over another:If, among physicians of ordinary skill and learning, more than one method of surgical treatment is recognized, it was proper for the plaintiff to be treated by any recognized method. The fact that some other method of treatment or surgery may have been accepted, or some other physician might or would have used a different method, does not establish negligence on the part of the defendant. [(Gielskie v. State of New York, 10 A.D.2d 471, 200 N.Y.S.2d 691 (3d Dept. 1960), 16 Am. Jur. Trials, page 604, Schreider v. Cestarri, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2d Dept. 1972)].Also based on the commentary to | The reason for this rule is that the difficulties and uncertainties in the practice of medicine are such that no practitioner can be required to guarantee good results. The defendants are not responsible for an unsuccessful result unless the same can be attributed to negligence on his part.(b) There may have been presented conflicting testimony as to which surgical method should have been chosen by the defendant in performing the operation. The jury should be instructed that the use of any of the accepted surgical methods is proper and it is not malpractice to choose one over another:If, among physicians of ordinary skill and learning, more than one method of surgical treatment is recognized, it was proper for the plaintiff to be treated by any recognized method. The fact that some other method of treatment or surgery may have been accepted, or some other physician might or would have used a different method, does not establish negligence on the part of the defendant. [(Gielskie v. State of New York, 10 A.D.2d 471, 200 N.Y.S.2d 691 (3d Dept. 1960), 16 Am. Jur. Trials, page 604, Schreider v. Cestarri, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2d Dept. 1972)].Also based on the commentary to |
| , | PJI 2:150, |
| at pages 775 to 776 (2004 PJI), the following additional charge should be given as it relates to the facts in this case:Where alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, there is no negligence in using one rather than the other. Similarly, the permissible exercise of medical judgment is measured by the state of medical knowledge at the time of the act or omission.Author's Comment: The defendant's “speaking” charge request—with argument and case authority—is consistent with recommended practice in submitting proposed jury instructions. Charge requests can be found in the New York Jury Instruction Filings database (NY-JIF-CIV) and they comprise a largely untapped resource. The request above can be found at | at pages 775 to 776 (2004 PJI), the following additional charge should be given as it relates to the facts in this case:Where alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, there is no negligence in using one rather than the other. Similarly, the permissible exercise of medical judgment is measured by the state of medical knowledge at the time of the act or omission.Author's Comment: The defendant's “speaking” charge request—with argument and case authority—is consistent with recommended practice in submitting proposed jury instructions. Charge requests can be found in the New York Jury Instruction Filings database (NY-JIF-CIV) and they comprise a largely untapped resource. The request above can be found at |
| .Note | 2003 WL 25170907.Note |
| that NY PJI commentary itself is cited as authority for the language proposed in the final paragraph | that NY PJI commentary itself is cited as authority for the language proposed in the final paragraph |
| above.2. . | above.2. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General3. . | General3. PJI 1:90. |
| General Instruction—Expert Witness (In addition, the defendant requests the following:)The jury should also be advised that the expert's qualifications bear on the weight to be given to his opinion. Meiselman v. Crown Heights Hospital, 285 N.Y.389, 34 N.E.2d 367, and cases cited in Comment to | General Instruction—Expert Witness (In addition, the defendant requests the following:)The jury should also be advised that the expert's qualifications bear on the weight to be given to his opinion. Meiselman v. Crown Heights Hospital, 285 N.Y.389, 34 N.E.2d 367, and cases cited in Comment to |
| , | PJI 1:90, |
| pg. 135 (2004). The following charge is taken from the | pg. 135 (2004). The following charge is taken from the |
| Meiselman |
| case:When you assess and evaluate the opinions of the various experts who have testified in this case, you should take into consideration the extent of the expert's qualifications to testify on the subject matter in which he expressed opinions, inasmuch as this bears on the question of the weight to be given his | case:When you assess and evaluate the opinions of the various experts who have testified in this case, you should take into consideration the extent of the expert's qualifications to testify on the subject matter in which he expressed opinions, inasmuch as this bears on the question of the weight to be given his |
| testimony.4. . Introduction5. . Impartiality6. . | testimony.4. PJI 1:35. Introduction5. PJI 1:36. Impartiality6. PJI 1:37. |
| Jury | Jury |
| Function7. . | Function7. PJI 1:38. |
| Court's | Court's |
| Function8. . | Function8. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings9. . | Rulings9. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence10. . | Evidence10. PJI 1:41. |
| Weighing | Weighing |
| Testimony11. . | Testimony11. PJI 1:22. |
| the Falsus in Uno | the Falsus in Uno |
| Charge12. . | Charge12. PJI 1:24. |
| on the privilege to have testimony read back (Defendant refers to “Return to | on the privilege to have testimony read back (Defendant refers to “Return to |
| Courtroom”)13. . | Courtroom”)13. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits14. . | Exhibits14. PJI 1:27. |
| Exclude | Exclude |
| Sympathy15. . | Sympathy15. PJI 1:91. |
| Interested | Interested |
| Witness16. . | Witness16. PJI 1:94. |
| Use of Pre-Trial | Use of Pre-Trial |
| deposition.17. . | deposition.17. PJI 1:60. |
| Burden of | Burden of |
| proof.18. . | proof.18. PJI 1:28. |
| Conclusion.The defendant reserves the right to request additional charges based upon the evidence and testimony which is elicited at trial.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, | Conclusion.The defendant reserves the right to request additional charges based upon the evidence and testimony which is elicited at trial.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, |
| Verdict | 2004 WL 2421075Verdict |
| and Settlement Summary, 2004 WL 1595029Trial Motion, Memorandum and Affidavit (Trial Memorandum of Law on Behalf of Defendants), 2004 WL 4747563Trial Pleading (Verified Answer), 2001 WL 35751103Trial Pleading (Verified Complaint), 2001 WL 35751104Jury Instruction (Defendant's Request to Charge), 2003 WL 251709072.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | and Settlement Summary, 2004 WL 1595029Trial Motion, Memorandum and Affidavit (Trial Memorandum of Law on Behalf of Defendants), 2004 WL 4747563Trial Pleading (Verified Answer), 2001 WL 35751103Trial Pleading (Verified Complaint), 2001 WL 35751104Jury Instruction (Defendant's Request to Charge), 2003 WL 251709072.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:6 Medical malpractice/Bladder injury, infertility, systemic infection, myofascitis, emotional distress/One plaintiff, two defendants (doctor and hospital)A. BackgroundType of Case: Medical malpracticeType of Injury: Bladder injury, infertility, systemic infection, myofascitis, emotional distressCase Name: Liat Ashkenazi, Plaintiff, v. Steven A. Kaplan, M.D., Columbia Presbyterian Medical Center, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Eileen BranstenDocket Number: 103910/00Verdict Date: January 2004Outcome: Defense VerdictBrief Summary of Facts: Plaintiff suffered a bladder injury, infertility, a systemic infection, myofascitis, and emotional distress after she underwent a cystometrogram and bladder augmentation surgery performed by the male defendant physician at the codefendant hospital. Plaintiff contended that Defendant performed the surgery in a negligent manner, failed to obtain Plaintiff's medical history, failed to perform proper physical examinations and diagnostic tests, failed to prescribe and administer timely and proper medications and surgical treatments, and failed to obtain timely and proper consultations. Plaintiff further contended that Defendant negligently performed contraindicated surgical procedures, failed to provide proper and timely post-operative care, failed to admit Plaintiff to the hospital as was necessary, failed to perform indicated operations and procedures, negligently allowed Plaintiff's bladder to rupture, and that Defendants failed to provide the proper standard of care. Defendants denied liability, disputed the cause of Plaintiff's injuries, and contended that Plaintiff negligently failed to follow the appropriate irrigation schedule as advised by Defendants.B. Jury Instructions Proposed by | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:6 Medical malpractice/Bladder injury, infertility, systemic infection, myofascitis, emotional distress/One plaintiff, two defendants (doctor and hospital)A. BackgroundType of Case: Medical malpracticeType of Injury: Bladder injury, infertility, systemic infection, myofascitis, emotional distressCase Name: Liat Ashkenazi, Plaintiff, v. Steven A. Kaplan, M.D., Columbia Presbyterian Medical Center, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Eileen BranstenDocket Number: 103910/00Verdict Date: January 2004Outcome: Defense VerdictBrief Summary of Facts: Plaintiff suffered a bladder injury, infertility, a systemic infection, myofascitis, and emotional distress after she underwent a cystometrogram and bladder augmentation surgery performed by the male defendant physician at the codefendant hospital. Plaintiff contended that Defendant performed the surgery in a negligent manner, failed to obtain Plaintiff's medical history, failed to perform proper physical examinations and diagnostic tests, failed to prescribe and administer timely and proper medications and surgical treatments, and failed to obtain timely and proper consultations. Plaintiff further contended that Defendant negligently performed contraindicated surgical procedures, failed to provide proper and timely post-operative care, failed to admit Plaintiff to the hospital as was necessary, failed to perform indicated operations and procedures, negligently allowed Plaintiff's bladder to rupture, and that Defendants failed to provide the proper standard of care. Defendants denied liability, disputed the cause of Plaintiff's injuries, and contended that Plaintiff negligently failed to follow the appropriate irrigation schedule as advised by Defendants.B. Jury Instructions Proposed by |
| Defendant1. . | Defendant1. PJI 2:150A. |
| Malpractice—Informed Consent (Defendant adds:)(unless defendants' motion to dismiss this claim is | Malpractice—Informed Consent (Defendant adds:)(unless defendants' motion to dismiss this claim is |
| granted).2. . | granted).2. PJI 2:150. |
| Malpractice—Physician (Defendant refers to this instruction as:)Malpractice by a Physician Including Good Result Not Guaranteed, and Medical | Malpractice—Physician (Defendant refers to this instruction as:)Malpractice by a Physician Including Good Result Not Guaranteed, and Medical |
| Judgment.3. . | Judgment.3. PJI 2:36. |
| Comparative negligence of | Comparative negligence of |
| plaintiff.4. . | plaintiff.4. PJI 1:60. |
| Burden of | Burden of |
| Proof.5. . | Proof.5. PJI 2:70. |
| Proximate | Proximate |
| Cause6. . | Cause6. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness7. . | Witness7. PJI 1:97. |
| Special | Special |
| Verdicts8. . (Introduction)9. . | Verdicts8. PJI 1:20. (Introduction)9. PJI 1:21. |
| (Review Principles | (Review Principles |
| Stated)10. . | Stated)10. PJI 1:22. |
| (Falsus in | (Falsus in |
| Uno)11. . | Uno)11. PJI 1:23. |
| (Burden of | (Burden of |
| Proof)12. . | Proof)12. PJI 1:24. |
| (Return to | (Return to |
| Courtroom)13. . | Courtroom)13. PJI 1:25. |
| (Consider only testimony and | (Consider only testimony and |
| exhibits)14. . | exhibits)14. PJI 1:26. |
| (Five-Sixths | (Five-Sixths |
| Verdict)15. . | Verdict)15. PJI 1:27. |
| (Exclude | (Exclude |
| Sympathy)16. . (Conclusion)17. . | Sympathy)16. PJI 1:28. (Conclusion)17. PJI 1:29. |
| (Alternate | (Alternate |
| Jurors)18. . | Jurors)18. PJI 2:280. |
| (Defendant did not include title, which is: “Damages—Personal Injury—Injury and Pain and Suffering”)19. 2:280.2. (Defendant did not include title, which is: “Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction],” and added:)(plaintiff will not pay income tax on any award)C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2004 WL 5317049Trial Motion, Memorandum and Affidavit (Affirmation of Support), 2002 WL 32991812Trial Motion, Memorandum and Affidavit (Affirmation in Partial Opposition), 2000 WL 34606176Trial Motion, Memorandum and Affidavit (Attorney's Affirmation), 2000 WL 34606175Trial Pleading (Verified Complaint), 2000 WL 34606229Trial Pleading (Answer), 2000 WL 34606230Jury Instruction (Defendant's Proposed Request to Charge), | (Defendant did not include title, which is: “Damages—Personal Injury—Injury and Pain and Suffering”)19. 2:280.2. (Defendant did not include title, which is: “Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction],” and added:)(plaintiff will not pay income tax on any award)C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2004 WL 5317049Trial Motion, Memorandum and Affidavit (Affirmation of Support), 2002 WL 32991812Trial Motion, Memorandum and Affidavit (Affirmation in Partial Opposition), 2000 WL 34606176Trial Motion, Memorandum and Affidavit (Attorney's Affirmation), 2000 WL 34606175Trial Pleading (Verified Complaint), 2000 WL 34606229Trial Pleading (Answer), 2000 WL 34606230Jury Instruction (Defendant's Proposed Request to Charge), |
| 2.Sample | 2004 WL 37268322.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:7 Medical malpractice/Nerve injury; quadriceps atrophy; myofascitis/One plaintiff, five defendants (three doctors, one professional corporation, and one hospital)A. BackgroundType of Case: Medical malpracticeType of Injury: Injury to left femoral nerve, resulting in 19 percent whole body impairment, atrophy of left quadricep, and myofascitis when undergoing knee arthroscopyCase Name: Abbey J. Katcher, Plaintiff, v. Steven David Zaretsky, M.D., Jay Ross Zaretsky, M.D., Sergio Delamora, M.D., Sports Medicine and Rehabilitation Therapy, P.C., and the Mount Sinai Hospital, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Joan A. MaddenDocket Number: 118179/00Verdict Date: December 2003Outcome: Judgment for defendants; costs awarded to defendantsBrief Summary of Facts: Plaintiff suffered an injury to her left femoral nerve, which resulted in a 19 percent whole body impairment, atrophy of her left quadricep, and myofascitis when she underwent a knee arthroscopy while she was in the care of Defendants. Plaintiff contended that Defendants negligently performed the procedure, failed to place a guide wire through the femoral tunnel, failed to obtain clear and accurate images prior to surgery, failed to correctly place a surgical screw, and failed to provide the proper standard of care. Defendants denied liability and contended that their care of Plaintiff was within acceptable medical standards at all times.B. Jury Instructions1. Instructions Proposed by | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:7 Medical malpractice/Nerve injury; quadriceps atrophy; myofascitis/One plaintiff, five defendants (three doctors, one professional corporation, and one hospital)A. BackgroundType of Case: Medical malpracticeType of Injury: Injury to left femoral nerve, resulting in 19 percent whole body impairment, atrophy of left quadricep, and myofascitis when undergoing knee arthroscopyCase Name: Abbey J. Katcher, Plaintiff, v. Steven David Zaretsky, M.D., Jay Ross Zaretsky, M.D., Sergio Delamora, M.D., Sports Medicine and Rehabilitation Therapy, P.C., and the Mount Sinai Hospital, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Joan A. MaddenDocket Number: 118179/00Verdict Date: December 2003Outcome: Judgment for defendants; costs awarded to defendantsBrief Summary of Facts: Plaintiff suffered an injury to her left femoral nerve, which resulted in a 19 percent whole body impairment, atrophy of her left quadricep, and myofascitis when she underwent a knee arthroscopy while she was in the care of Defendants. Plaintiff contended that Defendants negligently performed the procedure, failed to place a guide wire through the femoral tunnel, failed to obtain clear and accurate images prior to surgery, failed to correctly place a surgical screw, and failed to provide the proper standard of care. Defendants denied liability and contended that their care of Plaintiff was within acceptable medical standards at all times.B. Jury Instructions1. Instructions Proposed by |
| Plaintiff1. . Introduction2. . | Plaintiff1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider on Testimony and | Consider on Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:37. |
| Jury | Jury |
| Function9. . | Function9. PJI 1:38. |
| Court's | Court's |
| Function10. . | Function10. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings11. . | Rulings11. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence12. . | Evidence12. PJI 1:41. |
| Weighing | Weighing |
| Testimony13. . | Testimony13. PJI 1:90. |
| Expert witnesses (Plaintiff specifies witnesses | Expert witnesses (Plaintiff specifies witnesses |
| as:) Plaintiff's | as:)• Plaintiff's |
| Expert: Rolf H. Langeland, | Expert: Rolf H. Langeland, |
| M.D.; Defendant's | M.D.;• Defendant's |
| Expert: Russel Windsor, | Expert: Russel Windsor, |
| M.D.14. . | M.D.14. PJI 1:91. |
| Interested Witness (Plaintiff specifies witnesses as:)Abbey Katcher, Dr. Steven Zaretsky, Dr. Jay | Interested Witness (Plaintiff specifies witnesses as:)Abbey Katcher, Dr. Steven Zaretsky, Dr. Jay |
| Zaretsky.15. . | Zaretsky.15. PJI 1:61. |
| General Instruction Burden of Proof—In Death Cases (Plaintiff asks for this instruction even though this is not a death case. Thus, the words “and death” in the first sentence are omitted, as are the words “who is (executor, administrator) of the estate of AB.” Following sentence is omitted: “The burden of proving that AB was negligent and that (his, her) negligence was a substantial factor in causing the injury and death of AB is upon the defendant.” The second paragraph of the requested instruction tracks the pattern instruction. In the first sentence of the third paragraph, the word “death” is omitted, although it is retained in the second sentence. Instead of “the plaintiff (executor, administrator) of AB's estate,” Plaintiff requests:)the plaintiff, who was under general anesthesia(Plaintiff omits fourth paragraph.)Author's Comment: In requesting | General Instruction Burden of Proof—In Death Cases (Plaintiff asks for this instruction even though this is not a death case. Thus, the words “and death” in the first sentence are omitted, as are the words “who is (executor, administrator) of the estate of AB.” Following sentence is omitted: “The burden of proving that AB was negligent and that (his, her) negligence was a substantial factor in causing the injury and death of AB is upon the defendant.” The second paragraph of the requested instruction tracks the pattern instruction. In the first sentence of the third paragraph, the word “death” is omitted, although it is retained in the second sentence. Instead of “the plaintiff (executor, administrator) of AB's estate,” Plaintiff requests:)the plaintiff, who was under general anesthesia(Plaintiff omits fourth paragraph.)Author's Comment: In requesting |
| PJI 1:61 |
| plaintiff seeks the benefit of a lower burden of proof that would be applicable in a death case. Note that the plaintiff also requested | plaintiff seeks the benefit of a lower burden of proof that would be applicable in a death case. Note that the plaintiff also requested |
| PJI 1:23 |
| although the Comment states, “When | although the Comment states, “When |
| [] | [PJI 1:61] |
| is used, | is used, |
| PJI 1:23 |
| should be omitted.” 1A | should be omitted.” 1A |
| , | NY PJI3d 1:61, |
| at 77 (2018). In the Supplemental Charge (see below), plaintiff requests the charge lowering the burden of proof for a plaintiff who has lost | at 77 (2018). In the Supplemental Charge (see below), plaintiff requests the charge lowering the burden of proof for a plaintiff who has lost |
| memory.16. . | memory.16. PJI 2:150. |
| Malpractice—Defined (Requested instruction varies considerably from PJI:)Medical malpractice is the negligent failure to treat a patient in accordance with good, proper and accepted medical practice that results in harm to, the patient. . . It is a form of negligence or carelessness. Intent to harm the patient is not an element of malpractice nor need recklessness or wantonness be shown.BASIS: | Malpractice—Defined (Requested instruction varies considerably from PJI:)Medical malpractice is the negligent failure to treat a patient in accordance with good, proper and accepted medical practice that results in harm to, the patient. . . It is a form of negligence or carelessness. Intent to harm the patient is not an element of malpractice nor need recklessness or wantonness be shown.BASIS: |
| PJI 2:150 |
| and | and |
| the |
| lead cases of Toth v. Community Hospital, 22 N.Y.2d 255, 262–3 and Pike v. Honsinger, 155 N.Y. 201, 209–10.(More of | lead cases of Toth v. Community Hospital, 22 N.Y.2d 255, 262–3 and Pike v. Honsinger, 155 N.Y. 201, 209–10.(More of |
| PJI 2:150 |
| requested at instruction | requested at instruction |
| 19.)17. . | 19.)17. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined (Plaintiff's requested instruction tracks PJI, replacing the word “use” with “exercise.”)18. No corresponding pattern instruction:MALPRACTICE—PROOFBefore discussing the claims of negligence against the defendant, it must be pointed out that to recover against the defendant the plaintiff does not have to prove each and every claim of a departure or deviation from good and accepted medical practice asserted against the defendant. If the plaintiff proves only one such departure or deviation against the defendant, and that. such departure or deviation substantially contributed to plaintiff's injury, then your verdict must be for plaintiff and against the defendant on the basis of such departure or | Common Law Standard of Care—Negligence Defined (Plaintiff's requested instruction tracks PJI, replacing the word “use” with “exercise.”)18. No corresponding pattern instruction:MALPRACTICE—PROOFBefore discussing the claims of negligence against the defendant, it must be pointed out that to recover against the defendant the plaintiff does not have to prove each and every claim of a departure or deviation from good and accepted medical practice asserted against the defendant. If the plaintiff proves only one such departure or deviation against the defendant, and that. such departure or deviation substantially contributed to plaintiff's injury, then your verdict must be for plaintiff and against the defendant on the basis of such departure or |
| deviation.19. . | deviation.19. PJI 2:150. |
| Malpractice—Physician (Plaintiff omits optional wording. In final paragraph, instead of “injury or harm,” Plaintiff requests “injury and | Malpractice—Physician (Plaintiff omits optional wording. In final paragraph, instead of “injury or harm,” Plaintiff requests “injury and |
| death.”)20. . | death.”)20. PJI 2:150A. |
| Malpractice—Informed Consent (Plaintiff omits the word “diagnostic” from “invasive diagnostic procedure”; omits all reference to the questions that the jury is called upon to answer.)21. No corresponding pattern instruction:MALPRACTICE—HINDSIGHTThe doctor and defendant hospital in this case are to be judged on the standards of care as they existed at the time and not as they appear now in retrospect or in light of subsequent events.As to the issue of causation, however, it can and often is judged in the light of after-acquired knowledge and in view of subsequent | Malpractice—Informed Consent (Plaintiff omits the word “diagnostic” from “invasive diagnostic procedure”; omits all reference to the questions that the jury is called upon to answer.)21. No corresponding pattern instruction:MALPRACTICE—HINDSIGHTThe doctor and defendant hospital in this case are to be judged on the standards of care as they existed at the time and not as they appear now in retrospect or in light of subsequent events.As to the issue of causation, however, it can and often is judged in the light of after-acquired knowledge and in view of subsequent |
| events.22. . | events.22. PJI 1:70. |
| Circumstantial Evidence (Plaintiff's instruction is cited to both | Circumstantial Evidence (Plaintiff's instruction is cited to both |
| PJI 1:70 |
| and | and |
| , | 2:70, |
| although it has more of the elements of 1:70, without the examples given in that instruction:)Plaintiff does not have to prove with certainty that the negligence of the defendant was a proximate cause of an injury. Rather, plaintiff only had to offer sufficient evidence from which reasonable people may conclude by reasonable inference that it is more probable than not that a cause of plaintiff's injury was caused by the defendant.Moreover, to recover, plaintiff was not obligated to offer evidence that excludes every other possible cause of injury. That is, plaintiff does not have to eliminate entirely the possibility that an act or omission of this defendant was not a cause.BASIS: | although it has more of the elements of 1:70, without the examples given in that instruction:)Plaintiff does not have to prove with certainty that the negligence of the defendant was a proximate cause of an injury. Rather, plaintiff only had to offer sufficient evidence from which reasonable people may conclude by reasonable inference that it is more probable than not that a cause of plaintiff's injury was caused by the defendant.Moreover, to recover, plaintiff was not obligated to offer evidence that excludes every other possible cause of injury. That is, plaintiff does not have to eliminate entirely the possibility that an act or omission of this defendant was not a cause.BASIS: |
| ; ; | PJI 1:70; PJI 2:70; |
| Spett v. President Monroe Bldg. & Mfg. Corp., 19 N.Y.2d 203, 205; Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 320–21; Monahan v. Weichert, 82 A.D.2d 102, 108.Author's Comment: Explaining the legal basis for a request to depart from the language of the pattern charge is recommended | Spett v. President Monroe Bldg. & Mfg. Corp., 19 N.Y.2d 203, 205; Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 320–21; Monahan v. Weichert, 82 A.D.2d 102, 108.Author's Comment: Explaining the legal basis for a request to depart from the language of the pattern charge is recommended |
| practice.23. . | practice.23. PJI 2:70. |
| Proximate Cause—In General (Plaintiff omits optional section regarding comparative | Proximate Cause—In General (Plaintiff omits optional section regarding comparative |
| fault.)24. . | fault.)24. PJI 1:97. |
| Special Verdicts (Plaintiff omits “and each juror will sign in the appropriate place to indicate (his, her) agreement or | Special Verdicts (Plaintiff omits “and each juror will sign in the appropriate place to indicate (his, her) agreement or |
| disagreement.”)25. . | disagreement.”)25. PJI 2:277. |
| Damages—General (Plaintiff replaces the word “suggestion” with “intimation.”)26. 2:280. Damages—Injury, Pain and Suffering (Plaintiff varies wording, adds specifics pertaining to this suit, and includes wording about loss of enjoyment of life that is repeated in instruction 27.)If you decide for the plaintiff on the question of liability, you must include in your verdict an award of money for the injury you find that Abbey Katcher suffered and for conscious pain and suffering which you find have been caused by the defendant. . .Conscious pain and suffering means pain and suffering of which there was some level of awareness by the plaintiff.Ms. Katcher is entitled to recover a sum of money, which will justly and fairly compensate her for her injury and for his conscious pain and suffering to date.In determining the amount, if any, to be awarded to Abbey Katcher for pain and suffering, you may take into consideration the effect that her injuries have had and may continue to have on her ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities that were a part of the person's life before the injury, and to experience the pleasures of life.If you find that the plaintiff, as a result of her injuries, suffered some loss of the ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to her for pain and suffering to | Damages—General (Plaintiff replaces the word “suggestion” with “intimation.”)26. 2:280. Damages—Injury, Pain and Suffering (Plaintiff varies wording, adds specifics pertaining to this suit, and includes wording about loss of enjoyment of life that is repeated in instruction 27.)If you decide for the plaintiff on the question of liability, you must include in your verdict an award of money for the injury you find that Abbey Katcher suffered and for conscious pain and suffering which you find have been caused by the defendant. . .Conscious pain and suffering means pain and suffering of which there was some level of awareness by the plaintiff.Ms. Katcher is entitled to recover a sum of money, which will justly and fairly compensate her for her injury and for his conscious pain and suffering to date.In determining the amount, if any, to be awarded to Abbey Katcher for pain and suffering, you may take into consideration the effect that her injuries have had and may continue to have on her ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities that were a part of the person's life before the injury, and to experience the pleasures of life.If you find that the plaintiff, as a result of her injuries, suffered some loss of the ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to her for pain and suffering to |
| date.27. . | date.27. PJI 2:280.1. |
| Loss of Enjoyment of | Loss of Enjoyment of |
| Life28. . | Life28. PJI 2:281. |
| Damages—Permanence—Life Expectancy (Plaintiff's instruction omits “future pain, suffering and disability and the loss of (his, her) ability to enjoy life.” Plaintiff omits “employment and activities” in determination of what Plaintiff's life expectancy should be:)If you find that any of the plaintiff's injuries are permanent, you must make such allowance in your verdict as you think that circumstance warrants, taking into consideration the period of time that has elapsed from the date of the injury to the present time and the period of time plaintiff can be expected to live. In this connection, it is pointed out to you that plaintiff, Abbey Katcher, is now 36 years old and she has a normal life expectancy and can be expected to live for 44.7 more years, that is, until age 86.7. The life expectancy figure I have given you is not binding upon you but may be considered by you, together with your own experience and the evidence you have heard concerning the condition of plaintiff's health and her habits in determining what the plaintiff's present life expectancy | Damages—Permanence—Life Expectancy (Plaintiff's instruction omits “future pain, suffering and disability and the loss of (his, her) ability to enjoy life.” Plaintiff omits “employment and activities” in determination of what Plaintiff's life expectancy should be:)If you find that any of the plaintiff's injuries are permanent, you must make such allowance in your verdict as you think that circumstance warrants, taking into consideration the period of time that has elapsed from the date of the injury to the present time and the period of time plaintiff can be expected to live. In this connection, it is pointed out to you that plaintiff, Abbey Katcher, is now 36 years old and she has a normal life expectancy and can be expected to live for 44.7 more years, that is, until age 86.7. The life expectancy figure I have given you is not binding upon you but may be considered by you, together with your own experience and the evidence you have heard concerning the condition of plaintiff's health and her habits in determining what the plaintiff's present life expectancy |
| is.29. . | is.29. PJI 2:284. |
| Damages—Shock, Emotional Distress and Physical Consequences | Damages—Shock, Emotional Distress and Physical Consequences |
| Thereof30. . | Thereof30. PJI 2:151A(1). |
| Damages—Itemized Verdict (Plaintiff varies instruction considerably, and replaces the permissive “may” in the PJI with the imperative “must”:)If you decide for the plaintiff on the question of liability, you must include in your verdict an award for past and future pain and suffering, which amount shall include the amount for the injury suffered and for the permanent effect of the injury, if any. Should you award amounts for damages that plaintiff will incur in the future, you must determine the period of years for which those amounts are intended to provide compensation and the amount you fix must represent the full amount awarded to plaintiff for that item of damage for that future period without reduction to present value. Your verdict will include answers to the following questions, which will be submitted to you in writing:(1) State separately the amount awarded for pain and suffering, including loss of: enjoyment of life, from the time of the occurrence up to the date of your verdict.If you decide not to make an award, you will insert the word “none”(2) State separately the amount awarded for pain, suffering, and loss of enjoyment of life including the permanent effect of the injury, from the time of verdict to the time that plaintiff could be expected to live.If you decide not to make an award, you will insert the word “none.”(3) If you do decide to award any amounts intended to compensate the plaintiff for damages to be incurred in the future, state the period of years over which such amounts are intended to provide compensation.Author's Comment: When a proposed charge varies from the pattern charge, as does this one in changing “may” to “must,” it is recommended to provide case or statutory | Damages—Itemized Verdict (Plaintiff varies instruction considerably, and replaces the permissive “may” in the PJI with the imperative “must”:)If you decide for the plaintiff on the question of liability, you must include in your verdict an award for past and future pain and suffering, which amount shall include the amount for the injury suffered and for the permanent effect of the injury, if any. Should you award amounts for damages that plaintiff will incur in the future, you must determine the period of years for which those amounts are intended to provide compensation and the amount you fix must represent the full amount awarded to plaintiff for that item of damage for that future period without reduction to present value. Your verdict will include answers to the following questions, which will be submitted to you in writing:(1) State separately the amount awarded for pain and suffering, including loss of: enjoyment of life, from the time of the occurrence up to the date of your verdict.If you decide not to make an award, you will insert the word “none”(2) State separately the amount awarded for pain, suffering, and loss of enjoyment of life including the permanent effect of the injury, from the time of verdict to the time that plaintiff could be expected to live.If you decide not to make an award, you will insert the word “none.”(3) If you do decide to award any amounts intended to compensate the plaintiff for damages to be incurred in the future, state the period of years over which such amounts are intended to provide compensation.Author's Comment: When a proposed charge varies from the pattern charge, as does this one in changing “may” to “must,” it is recommended to provide case or statutory |
| authority.31. . | authority.31. PJI 2:320.3. |
| (Damages—Action for Wrongful Death and Conscious Pain [Supplemental Instruction]) (regarding income taxes)2. Supplemental Jury Instructions Proposed by Plaintiff(In addition to the jury instructions requested above, the Plaintiff added the following requests, which were accompanied by further | (Damages—Action for Wrongful Death and Conscious Pain [Supplemental Instruction]) (regarding income taxes)2. Supplemental Jury Instructions Proposed by Plaintiff(In addition to the jury instructions requested above, the Plaintiff added the following requests, which were accompanied by further |
| “contentions.”)32. . | “contentions.”)32. PJI 1:77. |
| Evidence—Failure to Produce Documents (Plaintiff adds:)Ap Intra Operative | Evidence—Failure to Produce Documents (Plaintiff adds:)Ap Intra Operative |
| X-Ray33. . | X-Ray33. PJI 1:78. |
| Stipulation of Facts (Plaintiff adds:)MEDICAL EXPENSES INCURRED IN THE AMOUNT OF | Stipulation of Facts (Plaintiff adds:)MEDICAL EXPENSES INCURRED IN THE AMOUNT OF |
| $58,503.2734. . | $58,503.2734. PJI 1:62. |
| Burden of Proof—When Plaintiff Suffers Loss of Memory (References to “plaintiff” or “defendant” often replaced with “party.” Final paragraph altered considerable, to account for anesthesia.)In an action such as this, however, the plaintiff, who was under general anesthesia is not held to as high a degree of proof as is required of an injured plaintiff who can describe what happened. Thus, you are permitted greater latitude in inferring negligence on the part of the. defendants from all of the evidence in the case. If, from all the credible evidence in this case, you conclude that it is more probable than not that the defendants were negligent and that their negligence was a substantial factor causing the injury or death, you will find for the plaintiff on this issue. However, if that is not your decision, or if you find that the evidence is so evenly balanced that you cannot say that the greater weight of the evidence is on either side of these issues, you will find defendants were not at | Burden of Proof—When Plaintiff Suffers Loss of Memory (References to “plaintiff” or “defendant” often replaced with “party.” Final paragraph altered considerable, to account for anesthesia.)In an action such as this, however, the plaintiff, who was under general anesthesia is not held to as high a degree of proof as is required of an injured plaintiff who can describe what happened. Thus, you are permitted greater latitude in inferring negligence on the part of the. defendants from all of the evidence in the case. If, from all the credible evidence in this case, you conclude that it is more probable than not that the defendants were negligent and that their negligence was a substantial factor causing the injury or death, you will find for the plaintiff on this issue. However, if that is not your decision, or if you find that the evidence is so evenly balanced that you cannot say that the greater weight of the evidence is on either side of these issues, you will find defendants were not at |
| fault.35. . | fault.35. PJI 2:15. |
| Common Law Standard of Care—Defendant Having Special Knowledge (Plaintiff adds specifics:)A person who has special training and experience in a profession, when acting in the profession on behalf of others who are relying on his special skills, has the duty to use the same degree of skill and care that others in the same profession in the community would reasonably use in the same situation. Steven Zaretsky, M.D., the defendant in this case, claimed to have special skills as an expert in a surgical procedure known as an “Arthroscopically assisted reconstruction of the knee using bone-patella-tendon-bone autograft.” If you decide that defendant did use the same degree of skill and care that other expert surgeons in Arthroscopically assisted reconstruction of the knee using bone-patella-tendon-bone autograft would reasonably use in the same situation, then you must find that defendant was not negligent, no matter what resulted from the defendant's conduct. On the other hand, if you decide that defendant did not use the same degree of skill and care, then you must find that defendant was | Common Law Standard of Care—Defendant Having Special Knowledge (Plaintiff adds specifics:)A person who has special training and experience in a profession, when acting in the profession on behalf of others who are relying on his special skills, has the duty to use the same degree of skill and care that others in the same profession in the community would reasonably use in the same situation. Steven Zaretsky, M.D., the defendant in this case, claimed to have special skills as an expert in a surgical procedure known as an “Arthroscopically assisted reconstruction of the knee using bone-patella-tendon-bone autograft.” If you decide that defendant did use the same degree of skill and care that other expert surgeons in Arthroscopically assisted reconstruction of the knee using bone-patella-tendon-bone autograft would reasonably use in the same situation, then you must find that defendant was not negligent, no matter what resulted from the defendant's conduct. On the other hand, if you decide that defendant did not use the same degree of skill and care, then you must find that defendant was |
| negligent.36. . | negligent.36. PJI 2:65. |
| Res Ipsa | Res Ipsa |
| Loquitur37. . | Loquitur37. PJI 2:282. |
| Damages—Aggravation of Pre-Existing Condition (Plaintiff includes specifics:)Prior to Dr. Zaretsky's surgery, the plaintiff was noted to have Grade III Chondromalacia at the Patella Femoral Joint and Mild degenerative changes in the lateral tibial plateau, which were asymptomatic and caused no pain. If you find that these conditions were aggravated so as to be a cause of pain and suffering, or increased pain and suffering, then the plaintiff is entitled to recover for any such pain and suffering resulting from such aggravation. She is not, however, entitled to recover for any physical ailment or disability which existed prior to the surgery or for any injuries which were not caused or contributed to by the operation. The plaintiff can recover only for damage caused by aggravation of the pre-existing condition, not the condition itself. The plaintiff should be compensated to the extent that you find her condition was made worse by the defendant's | Damages—Aggravation of Pre-Existing Condition (Plaintiff includes specifics:)Prior to Dr. Zaretsky's surgery, the plaintiff was noted to have Grade III Chondromalacia at the Patella Femoral Joint and Mild degenerative changes in the lateral tibial plateau, which were asymptomatic and caused no pain. If you find that these conditions were aggravated so as to be a cause of pain and suffering, or increased pain and suffering, then the plaintiff is entitled to recover for any such pain and suffering resulting from such aggravation. She is not, however, entitled to recover for any physical ailment or disability which existed prior to the surgery or for any injuries which were not caused or contributed to by the operation. The plaintiff can recover only for damage caused by aggravation of the pre-existing condition, not the condition itself. The plaintiff should be compensated to the extent that you find her condition was made worse by the defendant's |
| negligence/malpractice.38. . | negligence/malpractice.38. PJI 2:283. |
| Damages—Increased Susceptibility to Injury (Plaintiff omits “or mental” as type of condition she might have | Damages—Increased Susceptibility to Injury (Plaintiff omits “or mental” as type of condition she might have |
| had.)39. . | had.)39. PJI 2:305. |
| Damages—Personal Injury—Subsequent Injury—Medical Malpractice (Plaintiff omits phrase about “lack of skill of any doctor who treated the plaintiff.”)If you find that the defendant was negligent and that defendant's negligence caused plaintiff injury, the defendant is responsible for the injury and the pain and suffering caused by defendant's negligence and is also liable for any aggravation of the injury subsequent to the original injury which was caused by defendant's | Damages—Personal Injury—Subsequent Injury—Medical Malpractice (Plaintiff omits phrase about “lack of skill of any doctor who treated the plaintiff.”)If you find that the defendant was negligent and that defendant's negligence caused plaintiff injury, the defendant is responsible for the injury and the pain and suffering caused by defendant's negligence and is also liable for any aggravation of the injury subsequent to the original injury which was caused by defendant's |
| negligence.40. . | negligence.40. PJI 2:306. |
| Damages—Personal Injury—Subsequent Injury—Subsequent Accident3. Instructions Proposed by | Damages—Personal Injury—Subsequent Injury—Subsequent Accident3. Instructions Proposed by |
| Defendant1. . | Defendant1. PJI 1:22. |
| Falsus In | Falsus In |
| Uno2. . | Uno2. PJI 1:23. |
| Burden of Proof (Defendant adds:)New | Burden of Proof (Defendant adds:)New |
| York3. . | York3. PJI 1:24. |
| Return to | Return to |
| Courtroom4. . | Courtroom4. PJI 1:25. |
| Courtroom Only Testimony and | Courtroom Only Testimony and |
| Exhibits5. . | Exhibits5. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict6. . | Verdict6. PJI 1:27. |
| Exclude | Exclude |
| Sympathy7. . | Sympathy7. PJI 1:90. |
| Expert | Expert |
| Witness8. . | Witness8. PJI 1:90. |
| Interested | Interested |
| Witness9. . Negligence10. . | Witness9. PJI 2:10. Negligence10. PJI 2:70. |
| Proximate | Proximate |
| Cause11. . | Cause11. PJI 2:150. |
| Physician Malpractice12. No corresponding pattern instruction (Defendant here adds instruction on hindsight, without citing a source)HINDSIGHTIn determining the issues of malpractice, I charge you that you cannot decide these issues based on hindsight; that is, on what occurred thereafter or what could have been done after the occurrence in question. You must judge the facts and responsibilities and circumstances facing the defendant at the time of the occurrence.A defendant is not to be judged by after-acquired knowledge or by the results of his treatment. A defendant is chargeable with reasonable, foreseeable care at the time of the treatment, and not with hindsight.C. Case Documents Available on Westlaw1.Withdrawal of appeal referenced in table: Katcher v. Zaretsky, 9 A.D.3d 918, 780 N.Y.S.2d 503 (Table) (1st Dep't 2004)Verdict and Settlement Summary, 2003 WL 25539832Proposed Order, Agreement and Settlement (Judgment), 2004 WL 3558074Trial Pleading (Complaint), 2000 WL 34534578Jury Instruction (Plaintiff's Request to Charge), 2003 WL 24167384Jury Instruction (Defendant's Request to Charge), 2003 WL 24167385Jury Instruction (Plaintiff's Contentions and Supplemental Requests to Charge), 2003 WL 24167386Verdict, Agreement and Settlement (Jury Interrogatories), | Physician Malpractice12. No corresponding pattern instruction (Defendant here adds instruction on hindsight, without citing a source)HINDSIGHTIn determining the issues of malpractice, I charge you that you cannot decide these issues based on hindsight; that is, on what occurred thereafter or what could have been done after the occurrence in question. You must judge the facts and responsibilities and circumstances facing the defendant at the time of the occurrence.A defendant is not to be judged by after-acquired knowledge or by the results of his treatment. A defendant is chargeable with reasonable, foreseeable care at the time of the treatment, and not with hindsight.C. Case Documents Available on Westlaw1.Withdrawal of appeal referenced in table: Katcher v. Zaretsky, 9 A.D.3d 918, 780 N.Y.S.2d 503 (Table) (1st Dep't 2004)Verdict and Settlement Summary, 2003 WL 25539832Proposed Order, Agreement and Settlement (Judgment), 2004 WL 3558074Trial Pleading (Complaint), 2000 WL 34534578Jury Instruction (Plaintiff's Request to Charge), 2003 WL 24167384Jury Instruction (Defendant's Request to Charge), 2003 WL 24167385Jury Instruction (Plaintiff's Contentions and Supplemental Requests to Charge), 2003 WL 24167386Verdict, Agreement and Settlement (Jury Interrogatories), |
| 2.Sample | 2003 WL 253215372.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:8 Medical malpractice/Wrist fracture (improper healing)/One plaintiff; two defendantsA. BackgroundType of Case: Medical malpracticeType of Injury: Wrist fracture, failure to heal.Case Name: Katy Vary-Nagy, Plaintiffs, v. Jacob D. Rozbruch, M.D. and East 72nd Street Orthopedic Surgery Specialists, P.C.Court: Supreme Court of New York, New York CountyJudge: Edward H. LehnerDocket Number: 12241/01Verdict Date: May 12, 2003Outcome: Verdict for defendantBrief Summary of Facts: Plaintiff fell down stairs and sustained a severely comminuted fracture of her left, nondominant, wrist. She first went to an emergency room then to the defendant/physician. After fracture didn't heal property, Plaintiff returned to physician, who recommended an osteotomy. Plaintiff claims negligence for failing initially to recommend open reduction and internal fixation. Defendant claimed the reasons for not recommending those procedure were the risks of infection, and that it was too soon after injury. He also avers that he discussed this at an earlier date, but that plaintiff declined to undergo the procedure.B. Jury Instructions Proposed by | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:8 Medical malpractice/Wrist fracture (improper healing)/One plaintiff; two defendantsA. BackgroundType of Case: Medical malpracticeType of Injury: Wrist fracture, failure to heal.Case Name: Katy Vary-Nagy, Plaintiffs, v. Jacob D. Rozbruch, M.D. and East 72nd Street Orthopedic Surgery Specialists, P.C.Court: Supreme Court of New York, New York CountyJudge: Edward H. LehnerDocket Number: 12241/01Verdict Date: May 12, 2003Outcome: Verdict for defendantBrief Summary of Facts: Plaintiff fell down stairs and sustained a severely comminuted fracture of her left, nondominant, wrist. She first went to an emergency room then to the defendant/physician. After fracture didn't heal property, Plaintiff returned to physician, who recommended an osteotomy. Plaintiff claims negligence for failing initially to recommend open reduction and internal fixation. Defendant claimed the reasons for not recommending those procedure were the risks of infection, and that it was too soon after injury. He also avers that he discussed this at an earlier date, but that plaintiff declined to undergo the procedure.B. Jury Instructions Proposed by |
| Defendant1. . | Defendant1. PJI 1:22. |
| Falsus in | Falsus in |
| Uno2. . | Uno2. PJI 1:23. |
| Burden of | Burden of |
| Proof3. . | Proof3. PJI 1:27. |
| Exclude | Exclude |
| Sympathy4. . | Sympathy4. PJI 1:90. |
| Expert | Expert |
| Witness5. . | Witness5. PJI 1:91. |
| Interested Witness- | Interested Witness- |
| Plaintiff6. . | Plaintiff6. PJI 2:10. |
| Negligence | Negligence |
| defined7. . Foreseeability8. . | defined7. PJI 2:12. Foreseeability8. PJI 2:70. |
| Proximate | Proximate |
| Cause9. . Malpractice—Physician10. . | Cause9. PJI 2:150. Malpractice—Physician10. PJI 2:280. |
| Damages—Pain and SufferingC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21695463Verdict and Settlement Summary, 2003 WL 22326016Verdict and Settlement Summary, 2003 WL 25539800Verdict, Agreement and Settlement (Defendant's Proposed Verdict Sheet), 2003 WL 24167471Trial Pleading (Plaintiff's 3101 (d) Expert Witness Response to Demand of Defendants), 2003 WL 24167397Jury Instruction (Defendant's Request to Charge), 2003 WL 241673832.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Damages—Pain and SufferingC. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2003 WL 21695463Verdict and Settlement Summary, 2003 WL 22326016Verdict and Settlement Summary, 2003 WL 25539800Verdict, Agreement and Settlement (Defendant's Proposed Verdict Sheet), 2003 WL 24167471Trial Pleading (Plaintiff's 3101 (d) Expert Witness Response to Demand of Defendants), 2003 WL 24167397Jury Instruction (Defendant's Request to Charge), 2003 WL 241673832.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:9 Medical malpractice/Faulty rhinoplasty/One plaintiff, one defendantA. BackgroundType of Case: Medical malpracticeType of Injury: Faulty rhinoplasty—difficulty breathing, cosmetic deficitCase Name: Zahra Shahram, Plaintiff, v. Hanley Horwitz, M.D., Defendant.Court: Supreme Court of New York, Erie CountyJudge: Frank A. SeditaDocket Number: 004585/98Verdict Date: February 10, 2003Outcome: Verdict for defendantBrief Summary of Facts: Plaintiff, who underwent a rhinoplasty because of breathing difficulties associated with a deviated septum as well as for cosmetic reasons, contended that Defendant plastic surgeon negligently failed to appreciate a malrotation of the alar and thereby excised an excessive amount of cartilage. Plaintiff contended that as a result, she suffered an alar collapse which heightened her breathing difficulties, and suffered a cosmetic deficit in which her nasal area appears to be “pinched.” Plaintiff contended that the difficulties are permanent despite some improvement from additional surgery.Defendant contended that he did, in fact, observe and appreciate the malrotation and that Plaintiff suffered a poor result which did not reflect negligence. Plaintiff countered that Defendant's records did not document such alleged observations of the malrotation by Defendant. Defendant contended that the malrotation was very obvious, and argued that the absence of such a mention in the records did not reflect that he did not appreciate the presence of the malrotation. Defendant also argued that the jury should consider that the subsequent surgery provided significant additional cosmetic benefits.Affirmed on appeal.B. Jury Instructions Proposed by | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:9 Medical malpractice/Faulty rhinoplasty/One plaintiff, one defendantA. BackgroundType of Case: Medical malpracticeType of Injury: Faulty rhinoplasty—difficulty breathing, cosmetic deficitCase Name: Zahra Shahram, Plaintiff, v. Hanley Horwitz, M.D., Defendant.Court: Supreme Court of New York, Erie CountyJudge: Frank A. SeditaDocket Number: 004585/98Verdict Date: February 10, 2003Outcome: Verdict for defendantBrief Summary of Facts: Plaintiff, who underwent a rhinoplasty because of breathing difficulties associated with a deviated septum as well as for cosmetic reasons, contended that Defendant plastic surgeon negligently failed to appreciate a malrotation of the alar and thereby excised an excessive amount of cartilage. Plaintiff contended that as a result, she suffered an alar collapse which heightened her breathing difficulties, and suffered a cosmetic deficit in which her nasal area appears to be “pinched.” Plaintiff contended that the difficulties are permanent despite some improvement from additional surgery.Defendant contended that he did, in fact, observe and appreciate the malrotation and that Plaintiff suffered a poor result which did not reflect negligence. Plaintiff countered that Defendant's records did not document such alleged observations of the malrotation by Defendant. Defendant contended that the malrotation was very obvious, and argued that the absence of such a mention in the records did not reflect that he did not appreciate the presence of the malrotation. Defendant also argued that the jury should consider that the subsequent surgery provided significant additional cosmetic benefits.Affirmed on appeal.B. Jury Instructions Proposed by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review of | Review of |
| Principles3. . | Principles3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony & | Consider Only Testimony & |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . | Sympathy9. PJI 1:39. |
| No Inference from | No Inference from |
| Rulings10. . | Rulings10. PJI 1:70. |
| Circumstantial | Circumstantial |
| Evidence11. . | Evidence11. PJI 1:90. |
| Expert | Expert |
| Witnesses12. . | Witnesses12. PJI 1:75. |
| Failure to Produce | Failure to Produce |
| Witnesses13. . | Witnesses13. PJI 1:91. |
| Interested | Interested |
| Witnesses14. . | Witnesses14. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence15. . | Evidence15. PJI 1:41. |
| Weighing | Weighing |
| Testimony16. . | Testimony16. PJI 2:150. |
| Malpractice—Physician (Defendant specifies:)including the Error in Judgment portion of the chargeAuthor's Comment: The “error in judgment” charge was specifically upheld on appeal. Shahram v. Horwitz, M.D., 5 A.D.3d 1034, 773 N.Y.S.2d 642 (4th Dept. | Malpractice—Physician (Defendant specifies:)including the Error in Judgment portion of the chargeAuthor's Comment: The “error in judgment” charge was specifically upheld on appeal. Shahram v. Horwitz, M.D., 5 A.D.3d 1034, 773 N.Y.S.2d 642 (4th Dept. |
| 2004).17. . | 2004).17. PJI 2:70. |
| Proximate | Proximate |
| Cause18. . | Cause18. PJI 1:97. |
| Special | Special |
| Verdicts19. . Damages—General20. . Conclusion21. . | Verdicts19. PJI 2:277. Damages—General20. PJI 1:28. Conclusion21. PJI 1:29. |
| Alternate JurorsC. Case Documents Available on Westlaw1.On appeal: Shahram v. Horwitz, M.D., 5 A.D.3d 1034, 773 N.Y.S.2d 642 (4th Dept. 2004) (affirming verdict)Verdict and Settlement Summary, 2003 WL 21133955Trial Deposition and Discovery (Plaintiff's Supplemental Bill of Particulars), 2001 WL 34834640Trial Deposition and Discovery (Bill of Particulars), 1998 WL 34360815Trial Pleading, | Alternate JurorsC. Case Documents Available on Westlaw1.On appeal: Shahram v. Horwitz, M.D., 5 A.D.3d 1034, 773 N.Y.S.2d 642 (4th Dept. 2004) (affirming verdict)Verdict and Settlement Summary, 2003 WL 21133955Trial Deposition and Discovery (Plaintiff's Supplemental Bill of Particulars), 2001 WL 34834640Trial Deposition and Discovery (Bill of Particulars), 1998 WL 34360815Trial Pleading, |
| Trial | 1998 WL 34360798 (Complaint)Trial |
| Transcript, 1998 WL 34360802Jury Instruction (Defendant's Requests for Jury Charges), 2003 WL 24193550Trial Transcript, | Transcript, 1998 WL 34360802Jury Instruction (Defendant's Requests for Jury Charges), 2003 WL 24193550Trial Transcript, |
| 2.Sample | 1998 WL 343608012.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:10 Medical malpractice/Failure to diagnose colonic perforation secondary to diverticulitis; wrongful death/One plaintiff, three defendantsA. BackgroundType of Case: Medical malpractice; wrongful deathType of Injury: Failure to timely diagnose and treat colonic perforation secondary to diverticulitis; deathCase Name: Helen H. Downes as Administratrix of the Estate of Craig A. Hubbard, Plaintiff, v. Southampton Hospital, Daniel Crough, M.D., and Leslaw Gredysa, M.D., DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Edward D. BurkeDocket Number: 14525/00Verdict Date: June 5, 2002Outcome: Verdict of $319,000. However, the court directed a verdict for Southampton Hospital. The case subsequently settled for $225,000.Brief Summary of Facts: Decedent went to emergency room with abdominal pain. Defendant Crough diagnosed constipation and ordered two enemas. When Dr. Crough's shift ended, decedent came under the care of a second doctor, who ordered a surgical consult. Defendant Gredysa, the surgeon, diagnosed gastroenteritis, and decided not to admit decedent. Decedent died less than 12 hours later of colonic perforation secondary to colonic diverticulitis. Plaintiff claimed that Dr. Crough was negligent in failing to order a CAT scan and failing to diagnose diverticulitis, and claimed that he departed from good and accepted medical care by ordering an enema before obtaining a diagnosis. Plaintiff claimed that Dr. Gredysa was negligent in failing to admit decedent for further observation and testing, and failed to order a CAT scan after decedent had been at the hospital for some time without a diagnosis to determine the cause of his pain.Defendants argued that decedent did not have signs and symptoms of diverticulitis, including severe abdominal pain, elevated white blood count, and fever, and did not fit the typical profile for the condition. Defendants also contended that it was not contraindicated to give an enema, and that a diagnosis of constipation was correct, given an increased amount of stool noted on X-ray. Dr. Gredysa claimed that decedent had no surgical belly, and argued that no further testing was required because decedent had no typical signs and symptoms of diverticulitis or of a perforation.B. Jury Instructions1. Instructions Proposed by | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:10 Medical malpractice/Failure to diagnose colonic perforation secondary to diverticulitis; wrongful death/One plaintiff, three defendantsA. BackgroundType of Case: Medical malpractice; wrongful deathType of Injury: Failure to timely diagnose and treat colonic perforation secondary to diverticulitis; deathCase Name: Helen H. Downes as Administratrix of the Estate of Craig A. Hubbard, Plaintiff, v. Southampton Hospital, Daniel Crough, M.D., and Leslaw Gredysa, M.D., DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Edward D. BurkeDocket Number: 14525/00Verdict Date: June 5, 2002Outcome: Verdict of $319,000. However, the court directed a verdict for Southampton Hospital. The case subsequently settled for $225,000.Brief Summary of Facts: Decedent went to emergency room with abdominal pain. Defendant Crough diagnosed constipation and ordered two enemas. When Dr. Crough's shift ended, decedent came under the care of a second doctor, who ordered a surgical consult. Defendant Gredysa, the surgeon, diagnosed gastroenteritis, and decided not to admit decedent. Decedent died less than 12 hours later of colonic perforation secondary to colonic diverticulitis. Plaintiff claimed that Dr. Crough was negligent in failing to order a CAT scan and failing to diagnose diverticulitis, and claimed that he departed from good and accepted medical care by ordering an enema before obtaining a diagnosis. Plaintiff claimed that Dr. Gredysa was negligent in failing to admit decedent for further observation and testing, and failed to order a CAT scan after decedent had been at the hospital for some time without a diagnosis to determine the cause of his pain.Defendants argued that decedent did not have signs and symptoms of diverticulitis, including severe abdominal pain, elevated white blood count, and fever, and did not fit the typical profile for the condition. Defendants also contended that it was not contraindicated to give an enema, and that a diagnosis of constipation was correct, given an increased amount of stool noted on X-ray. Dr. Gredysa claimed that decedent had no surgical belly, and argued that no further testing was required because decedent had no typical signs and symptoms of diverticulitis or of a perforation.B. Jury Instructions1. Instructions Proposed by |
| Plaintiff1. . | Plaintiff1. PJI 1:22. |
| Falsus in | Falsus in |
| Uno2. . | Uno2. PJI 1:90. |
| Expert | Expert |
| Witnesses3. . | Witnesses3. PJI 1:91. |
| Interested Witnesses (the | Interested Witnesses (the |
| parties)4. . | parties)4. PJI 2:150. |
| Malpractice—Physician (Plaintiff adds:)Plaintiff requests that the “mere error of judgment” clause be omitted because there is no allegation concerning the defendants' judgment. Nestorowich v. Ricotta (annexed); Spadaccini v. Dolan, 63 A.D.2d 110, 407 N.Y.S.2d 840 (1st Dep't | Malpractice—Physician (Plaintiff adds:)Plaintiff requests that the “mere error of judgment” clause be omitted because there is no allegation concerning the defendants' judgment. Nestorowich v. Ricotta (annexed); Spadaccini v. Dolan, 63 A.D.2d 110, 407 N.Y.S.2d 840 (1st Dep't |
| 1978).5. . | 1978).5. PJI 2:70. |
| Proximate | Proximate |
| Cause6. . | Cause6. PJI 1:61. |
| Burden of Proof in Death Cases (Plaintiff refers to instruction in Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 | Burden of Proof in Death Cases (Plaintiff refers to instruction in Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 |
| (1948).)7. . | (1948).)7. PJI 2:280. |
| Injury and Pain and | Injury and Pain and |
| Suffering8. . | Suffering8. PJI 2:280.1. |
| Loss of Enjoyment of | Loss of Enjoyment of |
| Life9. . | Life9. PJI 2:283. |
| Precipitation or Activation of Latent Disease or Condition (Plaintiff adds: | Precipitation or Activation of Latent Disease or Condition (Plaintiff adds: |
| “diverticulitis”)10. . | “diverticulitis”)10. PJI 2:320. |
| Damages—Action for Wrongful Death and Conscious | Damages—Action for Wrongful Death and Conscious |
| Pain11. . | Pain11. PJI 2:320.5. |
| Damages—Action for Wrongful Death and Conscious Pain [Supplemental Instruction]12. PJI Appendix A, Table 6-3 (Table may be found at NY PJI DIV 2 NOTE 1.)Life expectancy was 32 years from the date of death.13. Verdict Sheet, as annexed2. Instructions Proposed by | Damages—Action for Wrongful Death and Conscious Pain [Supplemental Instruction]12. PJI Appendix A, Table 6-3 (Table may be found at NY PJI DIV 2 NOTE 1.)Life expectancy was 32 years from the date of death.13. Verdict Sheet, as annexed2. Instructions Proposed by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . | Sympathy9. PJI 1:39. |
| No Inference from | No Inference from |
| Rulings10. . | Rulings10. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence11. . | Evidence11. PJI 1:41. |
| Weighing | Weighing |
| Testimony12. . | Testimony12. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness13. . | Witness13. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witnesses—Generally14. . | Witnesses—Generally14. PJI 2:150. |
| Malpractice: Physician15. Bad Result Does Not Warrant Inference of Negligence (Plaintiff adds:)Bad Result Does Not Warrant Inference of NegligenceThe law does not hold a physician liable merely because of a bad result which may occur. The mere fact of a bad result does not warrant the inference of negligence. The defendant is to be judged on the facts as they existed at the time of the treatment and not on hindsight and in light of subsequent events.Based on Henry v. Bronx-Lebanon Med. Ctr., 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dept. | Malpractice: Physician15. Bad Result Does Not Warrant Inference of Negligence (Plaintiff adds:)Bad Result Does Not Warrant Inference of NegligenceThe law does not hold a physician liable merely because of a bad result which may occur. The mere fact of a bad result does not warrant the inference of negligence. The defendant is to be judged on the facts as they existed at the time of the treatment and not on hindsight and in light of subsequent events.Based on Henry v. Bronx-Lebanon Med. Ctr., 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dept. |
| 1976).16. . | 1976).16. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General17. . Damages—General18. . | General17. PJI 2:277. Damages—General18. PJI 2:320. |
| Damages—Action for Wrongful Death and Conscious | Damages—Action for Wrongful Death and Conscious |
| Pain19. . | Pain19. PJI 1:28. |
| ConclusionThe Request to Charge herein is respectfully submitted at this time pursuant to the Court's directive. Defendant hereby reserves the right to supplement, amend, and/or delete the charges submitted herein, as additional testimony is taken and additional evidence is introduced.Author's Comment: Both sides included citations to authority for requested changes from the pattern charges.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2002 WL 31247747Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2002 WL 32921987Trial Motion, Memorandum and Affidavit (Entered in Comments Response), 2002 WL 32921988Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2002 WL 32921990Trial Motion, Memorandum and Affidavit (Affirmation in Response), 2002 WL 34182454Trial Motion, Memorandum and Affidavit (Affirmation in Opposition), 2002 WL 32921986Trial Motion, Memorandum and Affidavit (Affirmation in Opposition), 2002 WL 32921989Trial Pleading(Amended Verified Complaint), 2001 WL 34834262Affirmation in Reply (Trial Motion, Memorandum and Affidavit), 2001 WL 34834264Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Plaintiff's Motion and in Support of Cross-Motion), 2000 WL 35534058Trial Pleading (Verified Complaint), 2000 WL 34559875Trial Motion, Memorandum and Affidavit (Memorandum of Law in Support of Motion for Summary Judgment on Behalf of Dr. Daniel Crough), 2000 WL 34559878Trial Motion, Memorandum and Affidavit (Memorandum of Law in Support of Motion to Dismiss), 2000 WL 35534057Jury Instruction (Request to Charge on Behalf of Defendant Daniel Crough, M.D), 2002 WL 32921301Jury Instruction (Plaintiff's Requests to Charge), 2002 WL 32921302Expert Report and Affidavit (Expert Affirmation), 2002 WL 34181720 (N.Y. Sup., Jan. 28, 2002)Expert Report and Affidavit (Affidavit), 2002 WL 34192134Expert Report and Affidavit (Expert Affirmation), 2002 WL 32925227Expert Report and Affidavit (Expert Affirmation), 2000 WL 345619982.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | ConclusionThe Request to Charge herein is respectfully submitted at this time pursuant to the Court's directive. Defendant hereby reserves the right to supplement, amend, and/or delete the charges submitted herein, as additional testimony is taken and additional evidence is introduced.Author's Comment: Both sides included citations to authority for requested changes from the pattern charges.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2002 WL 31247747Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2002 WL 32921987Trial Motion, Memorandum and Affidavit (Entered in Comments Response), 2002 WL 32921988Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2002 WL 32921990Trial Motion, Memorandum and Affidavit (Affirmation in Response), 2002 WL 34182454Trial Motion, Memorandum and Affidavit (Affirmation in Opposition), 2002 WL 32921986Trial Motion, Memorandum and Affidavit (Affirmation in Opposition), 2002 WL 32921989Trial Pleading(Amended Verified Complaint), 2001 WL 34834262Affirmation in Reply (Trial Motion, Memorandum and Affidavit), 2001 WL 34834264Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Plaintiff's Motion and in Support of Cross-Motion), 2000 WL 35534058Trial Pleading (Verified Complaint), 2000 WL 34559875Trial Motion, Memorandum and Affidavit (Memorandum of Law in Support of Motion for Summary Judgment on Behalf of Dr. Daniel Crough), 2000 WL 34559878Trial Motion, Memorandum and Affidavit (Memorandum of Law in Support of Motion to Dismiss), 2000 WL 35534057Jury Instruction (Request to Charge on Behalf of Defendant Daniel Crough, M.D), 2002 WL 32921301Jury Instruction (Plaintiff's Requests to Charge), 2002 WL 32921302Expert Report and Affidavit (Expert Affirmation), 2002 WL 34181720 (N.Y. Sup., Jan. 28, 2002)Expert Report and Affidavit (Affidavit), 2002 WL 34192134Expert Report and Affidavit (Expert Affirmation), 2002 WL 32925227Expert Report and Affidavit (Expert Affirmation), 2000 WL 345619982.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:11 Medical malpractice/Failure to diagnose aortic dissection in descending aorta; wrongful death/One plaintiff, three defendantsA. BackgroundType of Case: Medical malpractice; wrongful deathType of Injury: Failure to properly diagnose and treat aortic dissection in descending aorta.Case Name: Marie Zumbo, as Executrix of the Estate of Rose D'Orazio, deceased and Marie Zumbo, Individually, Plaintiff, v. St. Vincent's Hospital of New York, North Shore University Hospital—Manhasset, Vincent A. Parnell, M.D. and Robert Braff, M.D., DefendantsCourt: Supreme Court of New York, New York CountyJudge: Alice SchlesingerDocket Number: 102412/95Verdict Date: January 17, 2002Outcome: Verdict for defendantsBrief Summary of Facts: Decedent, age 68, was admitted to defendant hospital to rule out a heart attack, and died three days later, after defendant hospital and its employee cardiologist allegedly failed to diagnose and treat an aortic dissection in the descending aorta. Plaintiff contends that cardiologist's course of action and treatment, especially the use of a balloon pump in the descending aorta which caused an aortic dissection, were a substantial contributing factor in causing decedent's death from complications of the aortic dissection. The patient's left ventricle was damaged and incapable of pumping enough blood to sustain the patient's heart and her body. Defendant disputed that its treatment departed from the appropriate standard of care, as decedent had a history of coronary disease, and decedent was monitored and treated appropriately after being admitted to the hospital.B. Jury Instructions Proposed by | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:11 Medical malpractice/Failure to diagnose aortic dissection in descending aorta; wrongful death/One plaintiff, three defendantsA. BackgroundType of Case: Medical malpractice; wrongful deathType of Injury: Failure to properly diagnose and treat aortic dissection in descending aorta.Case Name: Marie Zumbo, as Executrix of the Estate of Rose D'Orazio, deceased and Marie Zumbo, Individually, Plaintiff, v. St. Vincent's Hospital of New York, North Shore University Hospital—Manhasset, Vincent A. Parnell, M.D. and Robert Braff, M.D., DefendantsCourt: Supreme Court of New York, New York CountyJudge: Alice SchlesingerDocket Number: 102412/95Verdict Date: January 17, 2002Outcome: Verdict for defendantsBrief Summary of Facts: Decedent, age 68, was admitted to defendant hospital to rule out a heart attack, and died three days later, after defendant hospital and its employee cardiologist allegedly failed to diagnose and treat an aortic dissection in the descending aorta. Plaintiff contends that cardiologist's course of action and treatment, especially the use of a balloon pump in the descending aorta which caused an aortic dissection, were a substantial contributing factor in causing decedent's death from complications of the aortic dissection. The patient's left ventricle was damaged and incapable of pumping enough blood to sustain the patient's heart and her body. Defendant disputed that its treatment departed from the appropriate standard of care, as decedent had a history of coronary disease, and decedent was monitored and treated appropriately after being admitted to the hospital.B. Jury Instructions Proposed by |
| Plaintiff1. . | Plaintiff1. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined2. . | Defined2. PJI 2:70. |
| Proximate CauseAuthor's Comment: Consistent with the general principle that negligence itself is not actionable unless it causes injury, NY PJI recommends that the proximate cause charge follow the malpractice charge rather than precede it. See 1B NY PJI3d 2:150, at 45 | Proximate CauseAuthor's Comment: Consistent with the general principle that negligence itself is not actionable unless it causes injury, NY PJI recommends that the proximate cause charge follow the malpractice charge rather than precede it. See 1B NY PJI3d 2:150, at 45 |
| (2018).3. . Malpractice—Physician4. . | (2018).3. PJI 2:150. Malpractice—Physician4. PJI 2:151. |
| Malpractice—Hospital—General Hospital5. No corresponding pattern instruction:The standard of care for Dr. Robert Braff is measured by the degree of knowledge and ability of the average Board certified cardiologist in good standing practicing that specialty in the State of New York. (Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999))Author's Comment: This requested charge is consistent with and somewhat repetitious of | Malpractice—Hospital—General Hospital5. No corresponding pattern instruction:The standard of care for Dr. Robert Braff is measured by the degree of knowledge and ability of the average Board certified cardiologist in good standing practicing that specialty in the State of New York. (Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999))Author's Comment: This requested charge is consistent with and somewhat repetitious of |
| , | PJI 2:150, |
| which is already included in the proposed charges, and which provides in part, “A doctor must also use his or her best judgment and whatever superior knowledge and skill (he, she) possesses, even if the knowledge and skill exceeds that possessed by the (average doctor, average specialist) in the medical community where the doctor practices.”6. No corresponding pattern instruction:In a death case such as this, the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand. (Noseworthy v. City of New York, 298 NY 76, 80 N.E.2d 744 (1948))Author's Comment: It isn't clear why the plaintiff did not simply request | which is already included in the proposed charges, and which provides in part, “A doctor must also use his or her best judgment and whatever superior knowledge and skill (he, she) possesses, even if the knowledge and skill exceeds that possessed by the (average doctor, average specialist) in the medical community where the doctor practices.”6. No corresponding pattern instruction:In a death case such as this, the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand. (Noseworthy v. City of New York, 298 NY 76, 80 N.E.2d 744 (1948))Author's Comment: It isn't clear why the plaintiff did not simply request |
| , | PJI 1:61, |
| which covers the burden of proof in a wrongful death | which covers the burden of proof in a wrongful death |
| action.7. . | action.7. PJI 1:90. |
| Expert | Expert |
| Witnesses8. . | Witnesses8. PJI 1:75. |
| Failure to Produce Witness (Plaintiff specifies:)Dr. Tyras (Kronenberg v. Morris, 174 A.D.2d 610, 571 NYS2d 316 (2d Dep't | Failure to Produce Witness (Plaintiff specifies:)Dr. Tyras (Kronenberg v. Morris, 174 A.D.2d 610, 571 NYS2d 316 (2d Dep't |
| 1991))9. . | 1991))9. PJI 2:320. |
| Damages—Wrongful Death and Conscious Pain and Suffering(Note that elements from | Damages—Wrongful Death and Conscious Pain and Suffering(Note that elements from |
| PJI 2:320 |
| are included in the following instructions, 10 to 14, for which the Plaintiff does not cite any pattern instruction:)10. No corresponding pattern instruction:In determining what is fair and just compensation for the pecuniary injuries resulting from Rose D'Orazio's death, you may consider her age, health and life expectancy at the time of injury; and the number, age and life expectancy of her distributees. | are included in the following instructions, 10 to 14, for which the Plaintiff does not cite any pattern instruction:)10. No corresponding pattern instruction:In determining what is fair and just compensation for the pecuniary injuries resulting from Rose D'Orazio's death, you may consider her age, health and life expectancy at the time of injury; and the number, age and life expectancy of her distributees. |
| ()11. No | (Johnson v. MABSTOA, 71 NY2d 198, 524 NYS2d 415 (1988))11. No |
| corresponding pattern instruction,In a wrongful death action, an award of damages is limited to fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought. (EPTL. 5-4.3) Such damages include loss of support, voluntary assistance, and possible inheritance, as well as medical expenses incidental to death and funeral expenses. (Gonzalez v. N.Y.C. Housing Authority, 77 NY2d 663, 569 NYS2d 915 (1991))12. No corresponding pattern instruction:Pecuniary injuries include loss of parental nurture and care and loss of physical, moral and intellectual training by a parent. (Kenavan v. City of New York, 120 A.D.2d 24, 507 NYS2d 193 (2d Dept. 1986))13. No corresponding pattern instruction:You must take into consideration the intellectual, moral and physical training, guidance and assistance the decedent would have given her children had she lived. (Kenavan v. City of New York). Proof that decedent provided love, guidance and advice to her adult children is sufficient proof of pecuniary loss to sustain damages. (Korman v. Public Service Truck Renting Co., 116 A.D. 2d 631, 497 NYS2d 480 (2d Dep't 1986)).Likewise, evidence that a deceased grandparent provided services and guidance to her grandchildren demonstrate pecuniary damages. (Gonzalez v. N.Y.C. Housing Authority, 77 NY2d 663, 569 NYS2d 915 (1991))14. No corresponding pattern instruction:The damages recoverable are not capable of exact proof. | corresponding pattern instruction,In a wrongful death action, an award of damages is limited to fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought. (EPTL. 5-4.3) Such damages include loss of support, voluntary assistance, and possible inheritance, as well as medical expenses incidental to death and funeral expenses. (Gonzalez v. N.Y.C. Housing Authority, 77 NY2d 663, 569 NYS2d 915 (1991))12. No corresponding pattern instruction:Pecuniary injuries include loss of parental nurture and care and loss of physical, moral and intellectual training by a parent. (Kenavan v. City of New York, 120 A.D.2d 24, 507 NYS2d 193 (2d Dept. 1986))13. No corresponding pattern instruction:You must take into consideration the intellectual, moral and physical training, guidance and assistance the decedent would have given her children had she lived. (Kenavan v. City of New York). Proof that decedent provided love, guidance and advice to her adult children is sufficient proof of pecuniary loss to sustain damages. (Korman v. Public Service Truck Renting Co., 116 A.D. 2d 631, 497 NYS2d 480 (2d Dep't 1986)).Likewise, evidence that a deceased grandparent provided services and guidance to her grandchildren demonstrate pecuniary damages. (Gonzalez v. N.Y.C. Housing Authority, 77 NY2d 663, 569 NYS2d 915 (1991))14. No corresponding pattern instruction:The damages recoverable are not capable of exact proof. |
| (); | (Countryman v. Fonda, 166 NY 201, 59 N.E. 822 (1901)); |
| the fixing of damages in a death action is peculiarly within the province of the jury. (Parilis v. Feinstein, 49 NY2d 984, 406 N.E.2d 1059 (1980))Author's Comment: For thorough treatment of damages in a wrongful death action, see | the fixing of damages in a death action is peculiarly within the province of the jury. (Parilis v. Feinstein, 49 NY2d 984, 406 N.E.2d 1059 (1980))Author's Comment: For thorough treatment of damages in a wrongful death action, see |
| PJI 2:320 |
| and | and |
| the |
| accompanying and Comment and Special Verdict form.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2002 WL 1067997Verdict, Agreement and Settlement, 2002 WL 32936163Jury Instruction (Plaintiff's Request to Charge), 2002 WL 32936164Trial Pleading (Verified Answer to Plaintiff's Amended Verified Complaint), 2002 WL 32935494Trial Pleading (Verified Answer to Amended Verified Complaint), 2002 WL 32935495Verdict, Agreement and Settlement, 2002 WL 32936163Trial Motion, Memorandum and Affidavit (Attorney's Affirmation in Opposition to Defendant), 2001 WL 34841898Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2001 WL 34841899Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion), 2000 WL 34566153Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2000 WL 34566154Trial Motion, Memorandum and Affidavit (Attorney's Affirmation in Opposition to Defendant), 2000 WL 34566155Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2000 WL 34566156Trial Motion, Memorandum and Affidavit (Affirmation in Support of Cross-Motion), 1999 WL 3397706Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Defendants' Motion to Preclude and/or to Compel Disclosure), 1995 WL 17218352Trial Motion, Memorandum and Affidavit (Reply Affirmation), 1995 WL 17218353Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Defendants' Cross-Motion to Dismiss Plaintiffs' Complaint), 1995 WL 17218347Trial Motion, Memorandum and Affidavit (Reply Affirmation), 1995 WL 17218349Trial Motion, Memorandum and Affidavit (Reply Affirmation), 1995 WL 17218346Trial Pleading (Verified Answer to Amended Verified Complaint), 1995 WL 17218360Trial Pleading (Amended Verified Complaint), 1995 WL 17218364Trial Motion, Memorandum and Affidavit (Affirmation in Support), 1995 WL 17218350Trial Motion, Memorandum and Affidavit (Affirmation in Support of Cross-Motion), 1995 WL 17218348Trial Motion, Memorandum and Affidavit (Affirmation), 1995 WL 17218351Trial Motion, Memorandum and Affidavit (Affirmation), 1995 WL 17825641Trial Pleading (Verified Answer), 1995 WL 17218361Trial Pleading (Verified Answer), 1995 WL 17218362Trial Pleading (Verified Complaint), | accompanying and Comment and Special Verdict form.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2002 WL 1067997Verdict, Agreement and Settlement, 2002 WL 32936163Jury Instruction (Plaintiff's Request to Charge), 2002 WL 32936164Trial Pleading (Verified Answer to Plaintiff's Amended Verified Complaint), 2002 WL 32935494Trial Pleading (Verified Answer to Amended Verified Complaint), 2002 WL 32935495Verdict, Agreement and Settlement, 2002 WL 32936163Trial Motion, Memorandum and Affidavit (Attorney's Affirmation in Opposition to Defendant), 2001 WL 34841898Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2001 WL 34841899Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion), 2000 WL 34566153Trial Motion, Memorandum and Affidavit (Reply Affirmation), 2000 WL 34566154Trial Motion, Memorandum and Affidavit (Attorney's Affirmation in Opposition to Defendant), 2000 WL 34566155Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2000 WL 34566156Trial Motion, Memorandum and Affidavit (Affirmation in Support of Cross-Motion), 1999 WL 3397706Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Defendants' Motion to Preclude and/or to Compel Disclosure), 1995 WL 17218352Trial Motion, Memorandum and Affidavit (Reply Affirmation), 1995 WL 17218353Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Defendants' Cross-Motion to Dismiss Plaintiffs' Complaint), 1995 WL 17218347Trial Motion, Memorandum and Affidavit (Reply Affirmation), 1995 WL 17218349Trial Motion, Memorandum and Affidavit (Reply Affirmation), 1995 WL 17218346Trial Pleading (Verified Answer to Amended Verified Complaint), 1995 WL 17218360Trial Pleading (Amended Verified Complaint), 1995 WL 17218364Trial Motion, Memorandum and Affidavit (Affirmation in Support), 1995 WL 17218350Trial Motion, Memorandum and Affidavit (Affirmation in Support of Cross-Motion), 1995 WL 17218348Trial Motion, Memorandum and Affidavit (Affirmation), 1995 WL 17218351Trial Motion, Memorandum and Affidavit (Affirmation), 1995 WL 17825641Trial Pleading (Verified Answer), 1995 WL 17218361Trial Pleading (Verified Answer), 1995 WL 17218362Trial Pleading (Verified Complaint), |
| 2.Sample | 1995 WL 172183632.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:12 Medical malpractice/Unspecified injuries; failure to properly restrain patient at hospital/One plaintiff; one defendantA. BackgroundType of Case: Medical malpractice;Type of Injury: Unspecified injuries sustained by hospital patient in fall from balconyCase Name: Amos Marvel, Plaintiff, v. County of Erie, New York, Defendant.Court: Supreme Court of New York, Erie CountyJudge: Richard C. Kloch Sr.Docket Number: 4112/98Verdict Date: December 2001Outcome: Verdict for plaintiff; defendant 65% responsibleBrief Summary of Facts: Plaintiff was involuntarily committed to hospital/defendant under statute providing for emergency care for any person who appears to be mentally ill and is conducting himself in a manner which is likely to result in serious harm to himself or others. A nurse assessed the plaintiff and placed him in wrist restraints until he could be seen by a physician. Nurse stated that plaintiff appeared intoxicated and was threatening to leave. Plaintiff was not continually kept in view of the hospital staff before the physician arrived to examine him, despite hospital policy of “constant supervision.” Plaintiff freed himself from his restraints, ran through the hospital, hung from a balcony and fell to the ground, injuring himself.Jury found for plaintiff; appellate court upheld verdict.B. Jury Instructions1. Instructions Proposed by | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:12 Medical malpractice/Unspecified injuries; failure to properly restrain patient at hospital/One plaintiff; one defendantA. BackgroundType of Case: Medical malpractice;Type of Injury: Unspecified injuries sustained by hospital patient in fall from balconyCase Name: Amos Marvel, Plaintiff, v. County of Erie, New York, Defendant.Court: Supreme Court of New York, Erie CountyJudge: Richard C. Kloch Sr.Docket Number: 4112/98Verdict Date: December 2001Outcome: Verdict for plaintiff; defendant 65% responsibleBrief Summary of Facts: Plaintiff was involuntarily committed to hospital/defendant under statute providing for emergency care for any person who appears to be mentally ill and is conducting himself in a manner which is likely to result in serious harm to himself or others. A nurse assessed the plaintiff and placed him in wrist restraints until he could be seen by a physician. Nurse stated that plaintiff appeared intoxicated and was threatening to leave. Plaintiff was not continually kept in view of the hospital staff before the physician arrived to examine him, despite hospital policy of “constant supervision.” Plaintiff freed himself from his restraints, ran through the hospital, hung from a balcony and fell to the ground, injuring himself.Jury found for plaintiff; appellate court upheld verdict.B. Jury Instructions1. Instructions Proposed by |
| Plaintiff1. . Introduction2. . | Plaintiff1. PJI 1:20. Introduction2. PJI 1:21. |
| Review | Review |
| Principles3. . | Principles3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . Conclusion10. . | Sympathy9. PJI 1:28. Conclusion10. PJI 1:29. |
| Alternate | Alternate |
| Jurors11. . | Jurors11. PJI 1:77.1. |
| Destruction of Restraints (Note: This jury instruction relates to the destruction of any evidence, not just | Destruction of Restraints (Note: This jury instruction relates to the destruction of any evidence, not just |
| “restraints.”)12. . | “restraints.”)12. PJI 1:78. |
| Stipulation of Facts (Plaintiff specifies:)“Parties stipulate that as a result of the jump from the ECMC balcony on July 17, 1997 plaintiff sustained | Stipulation of Facts (Plaintiff specifies:)“Parties stipulate that as a result of the jump from the ECMC balcony on July 17, 1997 plaintiff sustained |
| injuries.”13. . | injuries.”13. PJI 1:90. |
| Expert Witness (Plaintiff specifies:)Dr. Douglas Jacobs—Psychiatry: Dr. Joseph Marcham—Emergency | Expert Witness (Plaintiff specifies:)Dr. Douglas Jacobs—Psychiatry: Dr. Joseph Marcham—Emergency |
| Medicine14. . | Medicine14. PJI 1:91. |
| Interested Witness (Plaintiff | Interested Witness (Plaintiff |
| specifies:)Plaintiff.15. . | specifies:)Plaintiff.15. PJI 1:92. |
| Interested Witness (Plaintiff specifies:)Employees of County—1. Randy DeWolfe; 2. Barbara Hull Hanlon; and, 3. Julie | Interested Witness (Plaintiff specifies:)Employees of County—1. Randy DeWolfe; 2. Barbara Hull Hanlon; and, 3. Julie |
| Moran.16. . | Moran.16. PJI 1:97. |
| General Instructions—Special | General Instructions—Special |
| Verdicts17. . | Verdicts17. PJI 2:10. |
| Negligence | Negligence |
| Defined—Generally19. . | Defined—Generally19. PJI 2:11. |
| Negligence Defined—Where Plaintiff Under Disability (Plaintiff specifies:)Specific language to be inserted is emboldened: “There is evidence in this case that Mr. Marvel was intoxicated and suffered from | Negligence Defined—Where Plaintiff Under Disability (Plaintiff specifies:)Specific language to be inserted is emboldened: “There is evidence in this case that Mr. Marvel was intoxicated and suffered from |
| depression.”20. . Foreseeability—Generally21. . | depression.”20. PJI 2:12. Foreseeability—Generally21. PJI 2:15. |
| Common Law Standard of Care—Defendant Having Special Knowledge (Plaintiff specifies:)Specific language to be inserted is emboldened: “A defendant who has special training and experience in the treatment of individuals received on Section 9.41 of the Mental Hygiene Law.”Author's Comment: On the appeal, the liability verdict in favor of the plaintiff was affirmed based on the statutory standard of care reflected in Mental Hygiene Law § 33.04(e, f) (“Restraint of patients”), as well as the defendant's own written standards reflected in its manual. See Marvel v. County of Erie, 307 A.D.2d 732, 762 N.Y.S.2d 753 (4th Dep't 2003). For jury instructions relating to a statutory standard of care, see | Common Law Standard of Care—Defendant Having Special Knowledge (Plaintiff specifies:)Specific language to be inserted is emboldened: “A defendant who has special training and experience in the treatment of individuals received on Section 9.41 of the Mental Hygiene Law.”Author's Comment: On the appeal, the liability verdict in favor of the plaintiff was affirmed based on the statutory standard of care reflected in Mental Hygiene Law § 33.04(e, f) (“Restraint of patients”), as well as the defendant's own written standards reflected in its manual. See Marvel v. County of Erie, 307 A.D.2d 732, 762 N.Y.S.2d 753 (4th Dep't 2003). For jury instructions relating to a statutory standard of care, see |
| PJI 2:25 |
| to | to |
| .22. . | 2:29.22. PJI 2:65. |
| Res Ipsa Loquitur (Plaintiff specifies:)misapplication of the wrist | Res Ipsa Loquitur (Plaintiff specifies:)misapplication of the wrist |
| restraints23. . | restraints23. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General24. . | General24. PJI 2:151. |
| Malpractice—Hospital—General Hospital (Plaintiff specifies:)Specific language to be inserted is emboldened: “ECMC is under a duty to use reasonable care in supervising its employees, including members of its medical staff, such as doctors, interns, residents as well as non-physician personnel, personnel, such as nurses, technicians and aides. Reasonable care means that degree of care customarily used by general hospitals in supervising their employees. Plaintiff claims that he was injured because the hospital failed to use reasonable care in that it failed to property supervise the emergency department and failed to property supervise the nursing staff and it failed to adequately supervise Dr. | Malpractice—Hospital—General Hospital (Plaintiff specifies:)Specific language to be inserted is emboldened: “ECMC is under a duty to use reasonable care in supervising its employees, including members of its medical staff, such as doctors, interns, residents as well as non-physician personnel, personnel, such as nurses, technicians and aides. Reasonable care means that degree of care customarily used by general hospitals in supervising their employees. Plaintiff claims that he was injured because the hospital failed to use reasonable care in that it failed to property supervise the emergency department and failed to property supervise the nursing staff and it failed to adequately supervise Dr. |
| Konakanchi.”25. . | Konakanchi.”25. PJI 2:151. |
| Malpractice—Hospital—General Hospital (Plaintiff specifies:)FURTHER requested charge as taken from the annotations: (a) Where a patient seeks medical care from a hospital or clinic, rather than from an individual physician the institution is liable for the malpractice of a physician who was apparently but not actually an institution's employee. (p. 744, 2001 Ed.) (b) A failure to comply with a hospital's own rules is some evidence of negligence. (p. 748, 2001 | Malpractice—Hospital—General Hospital (Plaintiff specifies:)FURTHER requested charge as taken from the annotations: (a) Where a patient seeks medical care from a hospital or clinic, rather than from an individual physician the institution is liable for the malpractice of a physician who was apparently but not actually an institution's employee. (p. 744, 2001 Ed.) (b) A failure to comply with a hospital's own rules is some evidence of negligence. (p. 748, 2001 |
| Ed.)26. . | Ed.)26. PJI 2:235. |
| Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment2. Instructions Proposed by | Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment2. Instructions Proposed by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:60. |
| Burden of Proof When Burden | Burden of Proof When Burden |
| Differs5. . | Differs5. PJI 2:36. |
| Comparative Negligence—Bifurcated | Comparative Negligence—Bifurcated |
| Trial6. . | Trial6. PJI 1:24. |
| Return to | Return to |
| Courtroom7. . | Courtroom7. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits8. . | Exhibits8. PJI 1:25A. |
| Juror's Use of Professional | Juror's Use of Professional |
| Expertise9. . | Expertise9. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict10. . | Verdict10. PJI 1:27. |
| Exclude | Exclude |
| Sympathy11. . Conclusion12. . | Sympathy11. PJI 1:28. Conclusion12. PJI 1:90. |
| Expert | Expert |
| Witness13. . | Witness13. PJI 1:91. |
| Interested | Interested |
| Witness14. . | Witness14. PJI 1:92. |
| Interested Witness—Employee of | Interested Witness—Employee of |
| Party15. . | Party15. PJI 2:10. |
| Negligence | Negligence |
| Defined—Generally16. . Foreseeability—Generally17. . | Defined—Generally16. PJI 2:12. Foreseeability—Generally17. PJI 2:45. |
| Comparative Negligence—Intoxicated | Comparative Negligence—Intoxicated |
| Person18. . | Person18. PJI 2:70. |
| Proximate Cause—In GeneralThe defendant, COUNTY OF ERIE, hereby requests the following additional jury instructions:19. No corresponding pattern instruction:Mental Hygiene Law | Proximate Cause—In GeneralThe defendant, COUNTY OF ERIE, hereby requests the following additional jury instructions:19. No corresponding pattern instruction:Mental Hygiene Law |
| § 9.4120. . | § 9.4120. PJI 2:151. |
| Negligence—Hospital—General Hospital (Defendant states that this instruction is derived from the commentary to | Negligence—Hospital—General Hospital (Defendant states that this instruction is derived from the commentary to |
| . | PJI 2:151. |
| Defendant does not ask that the actual pattern instruction be included:)The duty of reasonable care owed by a hospital is measured by the patient's infirmities known to or reasonably foreseeable by hospital officials and employees. A hospital is required to exercise reasonable care and diligence in safeguarding a patient, measured by the capacity of the patient to provide for his own safety. (Commentary to | Defendant does not ask that the actual pattern instruction be included:)The duty of reasonable care owed by a hospital is measured by the patient's infirmities known to or reasonably foreseeable by hospital officials and employees. A hospital is required to exercise reasonable care and diligence in safeguarding a patient, measured by the capacity of the patient to provide for his own safety. (Commentary to |
| , | PJI 2:151, |
| page 721, and cases cited therein). A hospital, however, is not an insurer of its patients' safety and there is no requirement that their activities be monitored 24 hours per day. (Mochen v. State of New York, 57 A.D. 2nd 719, 396 NYS 2d 113 (4th Dept, 1977)).Defendant, COUNTY OF ERIE, may have additional requests to charge based upon the balance of the proof to be introduced by the plaintiff during the trial.Author's Comment: Both sides included specific charge requests based on NY PJI Commentary.C. Case Documents Available on Westlaw1.On appeal: Marvel v. County of Erie, 307 A.D.2d 732, 762 N.Y.S.2d 332 (4th Dep't 2003) | page 721, and cases cited therein). A hospital, however, is not an insurer of its patients' safety and there is no requirement that their activities be monitored 24 hours per day. (Mochen v. State of New York, 57 A.D. 2nd 719, 396 NYS 2d 113 (4th Dept, 1977)).Defendant, COUNTY OF ERIE, may have additional requests to charge based upon the balance of the proof to be introduced by the plaintiff during the trial.Author's Comment: Both sides included specific charge requests based on NY PJI Commentary.C. Case Documents Available on Westlaw1.On appeal: Marvel v. County of Erie, 307 A.D.2d 732, 762 N.Y.S.2d 332 (4th Dep't 2003) |
| ( | (dismissing appeal |
| of motion to set aside jury verdict)On appeal: Marvel v. County of Erie, 307 A.D.2d 732, 762 N.Y.S.2d 753 (4th Dep't 2003) (affirming trial court verdict)Trial Motion, Memorandum and Affidavit 2001 WL 34843793Jury Instruction (Defendant's Request to Charge), 2001 WL 34843141Jury Instruction (Plaintiff's Request to Charge), 2001 WL 34843140Trial Deposition and Discovery (Bill of Particulars), 1998 WL 34362975Proposed Order, Agreement and Settlement (Verdict Sheet), | of motion to set aside jury verdict)On appeal: Marvel v. County of Erie, 307 A.D.2d 732, 762 N.Y.S.2d 753 (4th Dep't 2003) (affirming trial court verdict)Trial Motion, Memorandum and Affidavit 2001 WL 34843793Jury Instruction (Defendant's Request to Charge), 2001 WL 34843141Jury Instruction (Plaintiff's Request to Charge), 2001 WL 34843140Trial Deposition and Discovery (Bill of Particulars), 1998 WL 34362975Proposed Order, Agreement and Settlement (Verdict Sheet), |
| 2.Sample | 1996 WL 336846122.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:13 Medical malpractice/Injuries at birth; Erb's palsy/Two plaintiffs; three defendantsA. BackgroundType of Case: Medical malpracticeType of Injury: Various injuries at birth; Erb's palsyCase Name: Caroline Reilly, an infant by her mother and natural guardian, Katherine Reilly and Katherine Reilly, individually, Plaintiffs, v. Albert Sassoon, Lavoti & Sassoon, M.D., P.C. and Lenox Hill Hospital, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Marcy S. FriedmanDocket Number: 113109/96Verdict Date: May 3, 2001Outcome: Verdict for plaintiff, $1,350,000Brief Summary of Facts: Plaintiffs claim that Defendant doctor failed to recognize and treat a shoulder dystocia during the delivery of the infant Plaintiff, and pulled on the infant's head, causing a brachial plexus injury. The Plaintiff's father, who was present during the delivery, testified that his daughter suffered bruising to the head and forehead, as well as facial petechiae at birth. The infant Plaintiff was diagnosed with Erb's palsy. She underwent three surgical procedures, including nerve grafts and muscle transfers, and wore a Statue of Liberty brace for several months. She presently has limited motor function at the injury site. The Defendants deny that shoulder dystocia occurred and contend that any injury was the result of a malpresentation of the arm over the vertex.B. Jury Instructions Proposed by Plaintiff(Plaintiff includes introductory paragraph:)In accordance with the requirements of Green v. Downs, 27 N.Y. 2d 205, we ask this Court to discuss the evidence and relate it to the principles of law that are to be charged; and to apply each party's version of the facts to the law, since it is essential to incorporate the factual contentions of the parties in respect to the legal principles charged. The trial Court's instructions should state the law as applicable to the particular facts in issue in the case at bar, which the evidence in the case tends to prove. Mere abstract propositions of law applicable to any case, or mere statements of law in general terms, even though correct, should not be given unless they are made applicable to the issues in the case at bar. The instructions in the charge should be precise and specifically related to the claims of liability (Green v. Downs, 27 N.Y. 2d 205, 208). So viewed, the plaintiff makes the following requests to | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:13 Medical malpractice/Injuries at birth; Erb's palsy/Two plaintiffs; three defendantsA. BackgroundType of Case: Medical malpracticeType of Injury: Various injuries at birth; Erb's palsyCase Name: Caroline Reilly, an infant by her mother and natural guardian, Katherine Reilly and Katherine Reilly, individually, Plaintiffs, v. Albert Sassoon, Lavoti & Sassoon, M.D., P.C. and Lenox Hill Hospital, DefendantsCourt: Supreme Court of New York, New York CountyJudge: Marcy S. FriedmanDocket Number: 113109/96Verdict Date: May 3, 2001Outcome: Verdict for plaintiff, $1,350,000Brief Summary of Facts: Plaintiffs claim that Defendant doctor failed to recognize and treat a shoulder dystocia during the delivery of the infant Plaintiff, and pulled on the infant's head, causing a brachial plexus injury. The Plaintiff's father, who was present during the delivery, testified that his daughter suffered bruising to the head and forehead, as well as facial petechiae at birth. The infant Plaintiff was diagnosed with Erb's palsy. She underwent three surgical procedures, including nerve grafts and muscle transfers, and wore a Statue of Liberty brace for several months. She presently has limited motor function at the injury site. The Defendants deny that shoulder dystocia occurred and contend that any injury was the result of a malpresentation of the arm over the vertex.B. Jury Instructions Proposed by Plaintiff(Plaintiff includes introductory paragraph:)In accordance with the requirements of Green v. Downs, 27 N.Y. 2d 205, we ask this Court to discuss the evidence and relate it to the principles of law that are to be charged; and to apply each party's version of the facts to the law, since it is essential to incorporate the factual contentions of the parties in respect to the legal principles charged. The trial Court's instructions should state the law as applicable to the particular facts in issue in the case at bar, which the evidence in the case tends to prove. Mere abstract propositions of law applicable to any case, or mere statements of law in general terms, even though correct, should not be given unless they are made applicable to the issues in the case at bar. The instructions in the charge should be precise and specifically related to the claims of liability (Green v. Downs, 27 N.Y. 2d 205, 208). So viewed, the plaintiff makes the following requests to |
| charge:1. . Introduction2. . | charge:1. PJI 1:20. Introduction2. PJI 2:150. |
| Malpractice—Physician (Plaintiff requests that a portion of this instruction, pertaining to standards of care, be given as an introduction:)As you know, in this case, Katherine Reilly, mother of Caroline Reilly, seeks to recover fair compensation for the injuries sustained by her daughter and for the losses the sustained as a result of the failure of the defendant to provide proper medical care to Katherine Reilly and her unborn child on and after April 8, 1995. I will very shortly be reviewing the factual claims of the parties in greater detail. You will hear me use the word “negligence” and the word “malpractice.” Malpractice is simply negligence by a professional person like a doctor. When a doctor is negligent in the treatment of a patient such that the treatment provided falls below the standard of acceptable medical care, that is malpractice. Katherine Reilly, on behalf of her daughter and herself, claims that the defendant, Albert Sassoon, was negligent and that this negligence was a contributing factor in causing her daughter's injuries. These claims are denied by Dr. | Malpractice—Physician (Plaintiff requests that a portion of this instruction, pertaining to standards of care, be given as an introduction:)As you know, in this case, Katherine Reilly, mother of Caroline Reilly, seeks to recover fair compensation for the injuries sustained by her daughter and for the losses the sustained as a result of the failure of the defendant to provide proper medical care to Katherine Reilly and her unborn child on and after April 8, 1995. I will very shortly be reviewing the factual claims of the parties in greater detail. You will hear me use the word “negligence” and the word “malpractice.” Malpractice is simply negligence by a professional person like a doctor. When a doctor is negligent in the treatment of a patient such that the treatment provided falls below the standard of acceptable medical care, that is malpractice. Katherine Reilly, on behalf of her daughter and herself, claims that the defendant, Albert Sassoon, was negligent and that this negligence was a contributing factor in causing her daughter's injuries. These claims are denied by Dr. |
| Sassoon.3. . | Sassoon.3. PJI 1:6. |
| Function of Court and Jury (Plaintiff requests different language:)Your job is twofold. You will first determine whether the defendants are liable to the plaintiffs. You will make such determination according to the rules of law which I will shortly explain to you.If you find the defendants liable, then the second part of your job will be to determine the amount of money that will fully and fairly compensate Caroline Reilly and Katherine Reilly for the losses they sustained as a result of Caroline's injuries. You will attempt to set figures that are fair. Those figures must not be excessive. On the other hand, they must not be stinting or inadequate. They should fully compensate the plaintiffs for each of those items of loss allowable under the law and supported by the evidence.Now, in order to make the determinations I just mentioned, you must first decide what the facts of this case are based on the evidence that has been presented in this trial. That is your job as the finders of fact. And, I tell you now that whatever counsel for the plaintiffs has said and whatever counsel for the defendant has said, does not constitute evidence. Evidence is what the witnesses have said and what the documents admitted into evidence reveal. It is this evidence you must consider when you make your determinations. However, and I say this with equal emphasis, you must—I repeat—you must follow the instructions I now give you as to the law of this case. What I now tell you is the law you must apply whether or not you personally agree with | Function of Court and Jury (Plaintiff requests different language:)Your job is twofold. You will first determine whether the defendants are liable to the plaintiffs. You will make such determination according to the rules of law which I will shortly explain to you.If you find the defendants liable, then the second part of your job will be to determine the amount of money that will fully and fairly compensate Caroline Reilly and Katherine Reilly for the losses they sustained as a result of Caroline's injuries. You will attempt to set figures that are fair. Those figures must not be excessive. On the other hand, they must not be stinting or inadequate. They should fully compensate the plaintiffs for each of those items of loss allowable under the law and supported by the evidence.Now, in order to make the determinations I just mentioned, you must first decide what the facts of this case are based on the evidence that has been presented in this trial. That is your job as the finders of fact. And, I tell you now that whatever counsel for the plaintiffs has said and whatever counsel for the defendant has said, does not constitute evidence. Evidence is what the witnesses have said and what the documents admitted into evidence reveal. It is this evidence you must consider when you make your determinations. However, and I say this with equal emphasis, you must—I repeat—you must follow the instructions I now give you as to the law of this case. What I now tell you is the law you must apply whether or not you personally agree with |
| it.3. . | it.3. PJI 1:21. |
| Review Principles | Review Principles |
| Stated4. . | Stated4. PJI 1:22. |
| Falsus in | Falsus in |
| Uno5. . | Uno5. PJI 1:91. |
| General Instruction-Interested Witness—Generally (Plaintiffs add:)Plaintiffs request the Court charge with regard to interested witnesses as set forth | General Instruction-Interested Witness—Generally (Plaintiffs add:)Plaintiffs request the Court charge with regard to interested witnesses as set forth |
| PJI 1:91 |
| with regard to Mrs. Reilly and Dr. | with regard to Mrs. Reilly and Dr. |
| Sassoon.6. . | Sassoon.6. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness7. . | Witness7. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined—Generally / | Common Law Standard of Care—Negligence Defined—Generally / |
| . | PJI 2:150. |
| Malpractice—Physician (Plaintiff includes elements of both pattern instructions in request:)Simply stated, the defendant, Albert Sassoon, is liable if he was negligent and such negligence was a contributing factor in causing injury to Caroline Reilly. Negligence is the failure to exercise that degree of care which a reasonably prudent person would have exercised under the circumstances or which the law required under the circumstances. Again, when the negligence is by a professional person like a doctor, the term “malpractice” is used. An act or omission is a proximate cause of an occurrence if it was a substantial or material factor in bringing about the occurrence, that is, if reasonable people would regard it as a cause of the occurrence. I say “a cause” and not “the cause” by design. There may be more than one proximate cause of an occurrence. If two factors, or even three factors or four factors, all materially contribute to the happening of an occurrence, then each factor is a proximate cause of the occurrence. If negligence of the defendant, either by affirmative act or by the failure to act, was one of the material factors contributing to the injuries sustained by Caroline Reilly, then, even if there were other causes, the plaintiff may recover the full damages from the defendant under the | Malpractice—Physician (Plaintiff includes elements of both pattern instructions in request:)Simply stated, the defendant, Albert Sassoon, is liable if he was negligent and such negligence was a contributing factor in causing injury to Caroline Reilly. Negligence is the failure to exercise that degree of care which a reasonably prudent person would have exercised under the circumstances or which the law required under the circumstances. Again, when the negligence is by a professional person like a doctor, the term “malpractice” is used. An act or omission is a proximate cause of an occurrence if it was a substantial or material factor in bringing about the occurrence, that is, if reasonable people would regard it as a cause of the occurrence. I say “a cause” and not “the cause” by design. There may be more than one proximate cause of an occurrence. If two factors, or even three factors or four factors, all materially contribute to the happening of an occurrence, then each factor is a proximate cause of the occurrence. If negligence of the defendant, either by affirmative act or by the failure to act, was one of the material factors contributing to the injuries sustained by Caroline Reilly, then, even if there were other causes, the plaintiff may recover the full damages from the defendant under the |
| law.8. . | law.8. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General9. . | General9. PJI 2:71. |
| Proximate Cause—Concurrent | Proximate Cause—Concurrent |
| Causes10. . | Causes10. PJI 1:23. |
| Burden of Proof (Plaintiff alters the first two sentences so they directly apply to the plaintiff's case:)In this case, the burden of proof rests on the plaintiffs to show that the defendant was negligent and that such negligence was a contributing factor in causing injury to Caroline Reilly. That means that it must be established by a fair preponderance of the credible evidence that the defendant was negligent and such negligence was one of the proximate causes of plaintiff's injuries.(Plaintiff then includes remainder of paragraph, omitting the final sentence, “It is only if the evidence favoring the plaintiff's claim outweighs the evidence opposed to it that you can find in favor of plaintiff.” Plaintiff then adds:)If, from the evidence as a whole, including any evidence introduced by the defendant, you conclude that it is more probable that the defendant was guilty of malpractice which was a contributing factor in causing injury to Caroline Reilly than that he was not, your finding on the issue of negligence and malpractice must be for the plaintiffs. Therefore, if when you weigh the evidence the scale tips even slightly in favor of the plaintiffs or that a contention of the plaintiffs is more probable than not, you must find in favor of the plaintiffs against the defendant.(Plaintiff adds the following note:)NOTE: The last sentence represents a modification from the pattern instructions. It is sought on three grounds.First, if the trial court suggests to the jury the hypothetical instance in which the evidence is so evenly balanced as to preclude a finding that the evidence of either side predominates, that is to say, the instance in which plaintiffs just barely fail to sustain their burden of proof, then, as a matter of balance and fairness, the court should also suggest the instance in which plaintiff just barely succeeds in sustaining his burden of proof. In this regard, when an instruction includes a statement of possible findings or verdicts, fairness requires that the possibilities on both sides should be stated.Secondly, unless the jury is instructed that a plaintiffs' verdict is warranted in the instance in which the evidence tips slightly in their favor, a very important question of law is left unanswered. Simply stated, although the pattern instructions inform the jury that plaintiffs' evidence must outweigh that of the defendants, the question “By how much?” is not addressed. Absent an instruction that “outweigh” does not mean “clearly outweigh” or “substantially outweigh” but merely “outweigh by any degree”, a juror has no reason to believe that such is the case, particularly if the juror has been exposed to the burden of proof in criminal actions as have some of the jurors on this panel.Certainly, there is no justification for allowing the jury to believe that the proverbial 51% probability (more probable than not) is insufficient to satisfy plaintiffs' burden of proof.Author's Comment: This is an interesting and somewhat creative (no authority cited) argument for an embellishment of the pattern charge on burden of proof, having the overall effect of making the plaintiff's job a little easier. Query: Is it consistent with the “fair preponderance of the credible evidence” standard reflected in | Burden of Proof (Plaintiff alters the first two sentences so they directly apply to the plaintiff's case:)In this case, the burden of proof rests on the plaintiffs to show that the defendant was negligent and that such negligence was a contributing factor in causing injury to Caroline Reilly. That means that it must be established by a fair preponderance of the credible evidence that the defendant was negligent and such negligence was one of the proximate causes of plaintiff's injuries.(Plaintiff then includes remainder of paragraph, omitting the final sentence, “It is only if the evidence favoring the plaintiff's claim outweighs the evidence opposed to it that you can find in favor of plaintiff.” Plaintiff then adds:)If, from the evidence as a whole, including any evidence introduced by the defendant, you conclude that it is more probable that the defendant was guilty of malpractice which was a contributing factor in causing injury to Caroline Reilly than that he was not, your finding on the issue of negligence and malpractice must be for the plaintiffs. Therefore, if when you weigh the evidence the scale tips even slightly in favor of the plaintiffs or that a contention of the plaintiffs is more probable than not, you must find in favor of the plaintiffs against the defendant.(Plaintiff adds the following note:)NOTE: The last sentence represents a modification from the pattern instructions. It is sought on three grounds.First, if the trial court suggests to the jury the hypothetical instance in which the evidence is so evenly balanced as to preclude a finding that the evidence of either side predominates, that is to say, the instance in which plaintiffs just barely fail to sustain their burden of proof, then, as a matter of balance and fairness, the court should also suggest the instance in which plaintiff just barely succeeds in sustaining his burden of proof. In this regard, when an instruction includes a statement of possible findings or verdicts, fairness requires that the possibilities on both sides should be stated.Secondly, unless the jury is instructed that a plaintiffs' verdict is warranted in the instance in which the evidence tips slightly in their favor, a very important question of law is left unanswered. Simply stated, although the pattern instructions inform the jury that plaintiffs' evidence must outweigh that of the defendants, the question “By how much?” is not addressed. Absent an instruction that “outweigh” does not mean “clearly outweigh” or “substantially outweigh” but merely “outweigh by any degree”, a juror has no reason to believe that such is the case, particularly if the juror has been exposed to the burden of proof in criminal actions as have some of the jurors on this panel.Certainly, there is no justification for allowing the jury to believe that the proverbial 51% probability (more probable than not) is insufficient to satisfy plaintiffs' burden of proof.Author's Comment: This is an interesting and somewhat creative (no authority cited) argument for an embellishment of the pattern charge on burden of proof, having the overall effect of making the plaintiff's job a little easier. Query: Is it consistent with the “fair preponderance of the credible evidence” standard reflected in |
| ?11. . | PJI 1:23?11. PJI 2:150. |
| Malpractice—Physician (Plaintiff uses own language, and cites Pike v Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898))In determining whether the defendant is liable, you must determine whether there was negligence in the supervision or management of Katherine Reilly's care or a failure to properly provide treatment to the patient. In the absence of negligence, said defendant would not be liable merely because the infant was injured. However, if there was a lack of skill, knowledge, or reasonable care in the diagnosis of the patient's conditions or in the treatment of those conditions, or if the treatment deviated from the standard of accepted medical care, then the defendant is liable for all injuries proximately resulting from such lack of reasonable care of from such departure from sound medical practice.(Plaintiff adds the following note:)NOTE: The above charge states the so-called “bad result” rule, i.e., only negligence and not merely a bad result creates liability. Admittedly, defendants are entitled to such an instruction. We believe the above instruction fairly states the rule without repeating the rule several different ways as defendants sometimes request in an effort to overstate a point not in issue so as to sway the jury. Accordingly, we respectfully submit that one rendition of the “bad result” rule is sufficient to make the point.Author's Comment: Plaintiff's proposed charge softens the no-guarantee-of-good-result language of | Malpractice—Physician (Plaintiff uses own language, and cites Pike v Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898))In determining whether the defendant is liable, you must determine whether there was negligence in the supervision or management of Katherine Reilly's care or a failure to properly provide treatment to the patient. In the absence of negligence, said defendant would not be liable merely because the infant was injured. However, if there was a lack of skill, knowledge, or reasonable care in the diagnosis of the patient's conditions or in the treatment of those conditions, or if the treatment deviated from the standard of accepted medical care, then the defendant is liable for all injuries proximately resulting from such lack of reasonable care of from such departure from sound medical practice.(Plaintiff adds the following note:)NOTE: The above charge states the so-called “bad result” rule, i.e., only negligence and not merely a bad result creates liability. Admittedly, defendants are entitled to such an instruction. We believe the above instruction fairly states the rule without repeating the rule several different ways as defendants sometimes request in an effort to overstate a point not in issue so as to sway the jury. Accordingly, we respectfully submit that one rendition of the “bad result” rule is sufficient to make the point.Author's Comment: Plaintiff's proposed charge softens the no-guarantee-of-good-result language of |
| PJI 2:150 |
| without abandoning the underlying principle. The explanatory note she included in the proposed charge was | without abandoning the underlying principle. The explanatory note she included in the proposed charge was |
| thoughtful.11. . | thoughtful.11. PJI 2:150. |
| Malpractice—Physician (Plaintiff continues requested instruction in own language, citing Pike v Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898))The legal definition of malpractice is rather simple in theory. Under the circumstances of this case Dr. Sassoon impliedly represented that he possessed, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily expected of physicians in the community who are fully qualified specialists in the field of obstetrics. As the attending obstetrician it becomes his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. The law holds him liable for an injury to a patient under his care resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment. In addition, “departure from approved methods in general use, if it injures the patient, will render him liable, however good his intentions may have been.”(For the following portion, Plaintiff cites Hale v. State, 53 A.D. 2d 1025, 386 N.Y.S.2d 152 (4th Dep't 1976).)Thus, the defendant owed three duties to the patient: (1) a duty to possess the requisite knowledge and skill; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his best judgment in the application of this knowledge and skill. If there was any violation of any of these duties by the defendant, the defendant is fully liable for all injuries proximately caused by such violation of duty.In addition, the defendant was obligated to conform to the standards of accepted medical practice. In this regard, a doctor is liable if his diagnosis or treatment was “not in accord with sound professional practice” (O'Neil v State, 66 Misc.2d 936; 323 N.Y.S. 2d 56, 60–61 (Ct. of Claims 1971)) or was not “medically acceptable and proper under the circumstances.” (Schreiber v Cestari, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2nd Dep't 1972).) Accordingly, should you find that the treatment provided by the defendant departed from sound medical practice or that his failure to provide proper supervision or treatment departed from sound medical practice, you will find the defendant negligent for all resulting injuries and damages.(For the following portion, Plaintiff cites Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S. 2d 440 (1968); and Spadacinni v Dolan, 63 A.D. 2d 110, 407 N.Y.S.2d 840, 844 (1st Dep't 1978).)In determining whether or not the defendant exercised reasonable care in the treatment of Katherine Reilly you must consider the fact that Dr. Sassoon was a fully qualified specialist in obstetrics. The law provides that a specialist owes a greater duty of care than owed by the ordinary practitioner. Simply stated, the specialist is obligated to conform to the standard of care expected from specialists practicing in that field. That is to say, a specialist is obligated to exercise the superior care, skill, and intelligence expected of a such an individual. If you find that Dr. Sassoon did not conform to this higher standard of care, you will find him negligent.To summarize the law pertaining to the claim against the defendant, he was obligated to exercise the care, skill and intelligence to be expected of a specialist. He was also obligated to conform to the standard of sound medical practice for such a specialist. Should you find that the defendant failed to exercise reasonable care under the circumstances or that the treatment he provided or failed to provide departed from sound professional practice for a specialist in the field of obstetrics, you will find the defendant liable for all resulting injuries.The plaintiffs claim the defendant was negligent and guilty of malpractice in applying excessive traction or pull to the infant plaintiff's head at the time of her delivery. Such traction or pulling was a significant contributing factor in causing injury to the infant plaintiff.12. No corresponding pattern instruction, concerning lack of liability.In the event that you find Dr. Sassoon was not negligent or that if he was negligent, such negligence was not a contributing factor in causing injury to Caroline Reilly, then you will find the defendant not liable.13. No corresponding pattern instruction, lack of contribution by Plaintiff.I charge you as a matter of law, there is no claim by the defendant that Katherine Reilly did any act or failed to do any act which caused or contributed to causing any injury to Caroline | Malpractice—Physician (Plaintiff continues requested instruction in own language, citing Pike v Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898))The legal definition of malpractice is rather simple in theory. Under the circumstances of this case Dr. Sassoon impliedly represented that he possessed, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily expected of physicians in the community who are fully qualified specialists in the field of obstetrics. As the attending obstetrician it becomes his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. The law holds him liable for an injury to a patient under his care resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment. In addition, “departure from approved methods in general use, if it injures the patient, will render him liable, however good his intentions may have been.”(For the following portion, Plaintiff cites Hale v. State, 53 A.D. 2d 1025, 386 N.Y.S.2d 152 (4th Dep't 1976).)Thus, the defendant owed three duties to the patient: (1) a duty to possess the requisite knowledge and skill; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his best judgment in the application of this knowledge and skill. If there was any violation of any of these duties by the defendant, the defendant is fully liable for all injuries proximately caused by such violation of duty.In addition, the defendant was obligated to conform to the standards of accepted medical practice. In this regard, a doctor is liable if his diagnosis or treatment was “not in accord with sound professional practice” (O'Neil v State, 66 Misc.2d 936; 323 N.Y.S. 2d 56, 60–61 (Ct. of Claims 1971)) or was not “medically acceptable and proper under the circumstances.” (Schreiber v Cestari, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2nd Dep't 1972).) Accordingly, should you find that the treatment provided by the defendant departed from sound medical practice or that his failure to provide proper supervision or treatment departed from sound medical practice, you will find the defendant negligent for all resulting injuries and damages.(For the following portion, Plaintiff cites Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S. 2d 440 (1968); and Spadacinni v Dolan, 63 A.D. 2d 110, 407 N.Y.S.2d 840, 844 (1st Dep't 1978).)In determining whether or not the defendant exercised reasonable care in the treatment of Katherine Reilly you must consider the fact that Dr. Sassoon was a fully qualified specialist in obstetrics. The law provides that a specialist owes a greater duty of care than owed by the ordinary practitioner. Simply stated, the specialist is obligated to conform to the standard of care expected from specialists practicing in that field. That is to say, a specialist is obligated to exercise the superior care, skill, and intelligence expected of a such an individual. If you find that Dr. Sassoon did not conform to this higher standard of care, you will find him negligent.To summarize the law pertaining to the claim against the defendant, he was obligated to exercise the care, skill and intelligence to be expected of a specialist. He was also obligated to conform to the standard of sound medical practice for such a specialist. Should you find that the defendant failed to exercise reasonable care under the circumstances or that the treatment he provided or failed to provide departed from sound professional practice for a specialist in the field of obstetrics, you will find the defendant liable for all resulting injuries.The plaintiffs claim the defendant was negligent and guilty of malpractice in applying excessive traction or pull to the infant plaintiff's head at the time of her delivery. Such traction or pulling was a significant contributing factor in causing injury to the infant plaintiff.12. No corresponding pattern instruction, concerning lack of liability.In the event that you find Dr. Sassoon was not negligent or that if he was negligent, such negligence was not a contributing factor in causing injury to Caroline Reilly, then you will find the defendant not liable.13. No corresponding pattern instruction, lack of contribution by Plaintiff.I charge you as a matter of law, there is no claim by the defendant that Katherine Reilly did any act or failed to do any act which caused or contributed to causing any injury to Caroline |
| Reilly.14. . | Reilly.14. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering (Plaintiff supplies own language:)Should you find the defendant liable you must determine what amount of money is necessary to fully and fairly compensate both the infant plaintiff Caroline Reilly and her mother, plaintiffs Katherine Reilly, for the losses they both suffered by reason of the infant's injuries. The purpose of the fairly uncomplicated rules relating to damages is to award as nearly as it is possible just and fair compensation for what the law views as a wrong done to these plaintiffs. Damages are meant to be compensatory and reasonable, that is to say, they are not to be excessive nor are they to be inadequate or stinting in light of all the facts.Now, on this question, as on the others, the problem is in your sound discretion guided by your common sense and experience. You must reach a verdict that is fairly compensatory and that takes into account all of the elements that the law allows that you find to be pertinent and satisfied by the proof that has been placed before you.With respect to the infant plaintiff, Caroline Reilly, it is undisputed that she suffered an injury to her brachial plexus, also known as Erb's palsy. It is also undisputed this injury is permanent.Should you find the defendant is liable under the rules I have explained to you, you must award this plaintiff full and fair compensation for all injuries and losses caused in whole or in part by the defendant's | Damages—Personal Injury—Injury and Pain and Suffering (Plaintiff supplies own language:)Should you find the defendant liable you must determine what amount of money is necessary to fully and fairly compensate both the infant plaintiff Caroline Reilly and her mother, plaintiffs Katherine Reilly, for the losses they both suffered by reason of the infant's injuries. The purpose of the fairly uncomplicated rules relating to damages is to award as nearly as it is possible just and fair compensation for what the law views as a wrong done to these plaintiffs. Damages are meant to be compensatory and reasonable, that is to say, they are not to be excessive nor are they to be inadequate or stinting in light of all the facts.Now, on this question, as on the others, the problem is in your sound discretion guided by your common sense and experience. You must reach a verdict that is fairly compensatory and that takes into account all of the elements that the law allows that you find to be pertinent and satisfied by the proof that has been placed before you.With respect to the infant plaintiff, Caroline Reilly, it is undisputed that she suffered an injury to her brachial plexus, also known as Erb's palsy. It is also undisputed this injury is permanent.Should you find the defendant is liable under the rules I have explained to you, you must award this plaintiff full and fair compensation for all injuries and losses caused in whole or in part by the defendant's |
| negligence.15. . | negligence.15. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Plaintiff continues in own language, regarding pain and suffering and enjoyment of life.)If you find the defendant negligent the infant plaintiff is entitled to recover damages for injury and conscious pain and suffering. Your award should include fair compensation for the physical pain and suffering endured by the infant plaintiff. The infant plaintiff is entitled to recover a sum which will justly and fairly compensate her for the injury and for the conscious pain and suffering to date. Furthermore, in determining the amount, if any, to be awarded plaintiff for pain and suffering, both past and future, you must take into consideration the effect that plaintiff's injuries have on her ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which could have been a part of the person's life had she not been injured, and to experience the pleasures of life. If you find that plaintiff, as a result of her injuries suffered some loss of the ability to enjoy life you may take that loss into consideration in determining the amount to be awarded to her for pain and suffering to date as well as her future pain and suffering.16. No corresponding pattern instruction, concerning infant's inability to appreciate consequences of injury.It is not necessary for the infant to be able to fully appreciate the consequences of her injury or to verbalize her pain or deprivation, so long as you find such pain or deprivation of the ability to lead a normal life is present. Based on: Tinnerholm v. Parke Davis & Co., 411 F. 2d 48 (2nd Cir., 1964); Ledogar v. Giordano, 122 A.D. 2d 834, 837, 505 N.Y.S.2d 899 (2nd Dep't, | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Plaintiff continues in own language, regarding pain and suffering and enjoyment of life.)If you find the defendant negligent the infant plaintiff is entitled to recover damages for injury and conscious pain and suffering. Your award should include fair compensation for the physical pain and suffering endured by the infant plaintiff. The infant plaintiff is entitled to recover a sum which will justly and fairly compensate her for the injury and for the conscious pain and suffering to date. Furthermore, in determining the amount, if any, to be awarded plaintiff for pain and suffering, both past and future, you must take into consideration the effect that plaintiff's injuries have on her ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which could have been a part of the person's life had she not been injured, and to experience the pleasures of life. If you find that plaintiff, as a result of her injuries suffered some loss of the ability to enjoy life you may take that loss into consideration in determining the amount to be awarded to her for pain and suffering to date as well as her future pain and suffering.16. No corresponding pattern instruction, concerning infant's inability to appreciate consequences of injury.It is not necessary for the infant to be able to fully appreciate the consequences of her injury or to verbalize her pain or deprivation, so long as you find such pain or deprivation of the ability to lead a normal life is present. Based on: Tinnerholm v. Parke Davis & Co., 411 F. 2d 48 (2nd Cir., 1964); Ledogar v. Giordano, 122 A.D. 2d 834, 837, 505 N.Y.S.2d 899 (2nd Dep't, |
| 1986)14. | 1986)14. PJI 2:280 |
| Damages—Personal Injury—Injury and Pain and Suffering (Plaintiff supplies own language:)In this connection, I charge you that there is no approved standard by which pain or suffering can be measured, except the conscious [sic] of impartial jurors. Look to the evidence to determine the degree of pain and suffering sustained by Caroline Reilly as well as the degree to which she has been deprived of a normal life. Consider the length of time that she will carry these injuries and endure the conditions in the future. The monetary damages awarded should be in an amount sufficient to compensate her for all injuries, pain, suffering, mental anguish and deprivation of a normal life. Furthermore, the law does not require that the plaintiff present any direct evidence to show the amount of damages that she sustained as a result of the malpractice or the amount of money that would compensate her for the injuries received. It is only necessary that she prove to you the nature and extent of any such injuries, pain, suffering or permanent disability and it is for you, the jury, using your own judgment, sense and experience to estimate the monetary value of such pain, suffering, disability and deprivation of a normal life.15. No corresponding pattern instruction, regarding future complications.I charge you, according to the laws of the State of New York, in the event an illness or injury should develop or manifest itself subsequent to the rendering of your, the jury's verdict, the plaintiff cannot return to this Court or any other Court in this State and ask for additional damages because of any subsequent developments. Therefore, it is incumbent upon you, should you find the plaintiff is entitled to recover damages, to allow damages not only for the past suffering endured by her, but also, for any present or future pain, suffering or illness which she may undergo or endure in the future. Tinnerholm v. Parke Davis & Co., 411 F.2d 48 (2nd Cir. 1964); Scolavino v. State, 187 Misc. 253, 62 N.Y.S. 2d 17, 25 (Court of Claims, 1946), modified on other ground, | Damages—Personal Injury—Injury and Pain and Suffering (Plaintiff supplies own language:)In this connection, I charge you that there is no approved standard by which pain or suffering can be measured, except the conscious [sic] of impartial jurors. Look to the evidence to determine the degree of pain and suffering sustained by Caroline Reilly as well as the degree to which she has been deprived of a normal life. Consider the length of time that she will carry these injuries and endure the conditions in the future. The monetary damages awarded should be in an amount sufficient to compensate her for all injuries, pain, suffering, mental anguish and deprivation of a normal life. Furthermore, the law does not require that the plaintiff present any direct evidence to show the amount of damages that she sustained as a result of the malpractice or the amount of money that would compensate her for the injuries received. It is only necessary that she prove to you the nature and extent of any such injuries, pain, suffering or permanent disability and it is for you, the jury, using your own judgment, sense and experience to estimate the monetary value of such pain, suffering, disability and deprivation of a normal life.15. No corresponding pattern instruction, regarding future complications.I charge you, according to the laws of the State of New York, in the event an illness or injury should develop or manifest itself subsequent to the rendering of your, the jury's verdict, the plaintiff cannot return to this Court or any other Court in this State and ask for additional damages because of any subsequent developments. Therefore, it is incumbent upon you, should you find the plaintiff is entitled to recover damages, to allow damages not only for the past suffering endured by her, but also, for any present or future pain, suffering or illness which she may undergo or endure in the future. Tinnerholm v. Parke Davis & Co., 411 F.2d 48 (2nd Cir. 1964); Scolavino v. State, 187 Misc. 253, 62 N.Y.S. 2d 17, 25 (Court of Claims, 1946), modified on other ground, |
| , ; | 271 App. Div. 618, 67 N.Y.S. 2d 202 (3rd Dep't, 1946), aff'd 297 N.Y. 460 (1947); |
| Seigel v. City of New York, 43 A.D. 2d 271, 351 N.Y.S. 2d 394 (1974).(Plaintiff adds this note:)Note: In Tinnerholm v. Parke Davis & Co., 11 F.2d 48 (2nd Cir. 1964), a $400,000.00 award for pain and suffering was sustained for a three month old infant who, while not comatose, was left an idiot-imbecile by his injuries. He had undergone two spinal taps, a craniotomy and was left partially paralyzed, subject to seizures and had a life expectancy of fifty years. Accordingly to that case, there must be proof that the injured party is incapable of experiencing any type of pain and suffering in order to be denied this | Seigel v. City of New York, 43 A.D. 2d 271, 351 N.Y.S. 2d 394 (1974).(Plaintiff adds this note:)Note: In Tinnerholm v. Parke Davis & Co., 11 F.2d 48 (2nd Cir. 1964), a $400,000.00 award for pain and suffering was sustained for a three month old infant who, while not comatose, was left an idiot-imbecile by his injuries. He had undergone two spinal taps, a craniotomy and was left partially paralyzed, subject to seizures and had a life expectancy of fifty years. Accordingly to that case, there must be proof that the injured party is incapable of experiencing any type of pain and suffering in order to be denied this |
| charge.16. . | charge.16. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Plaintiff supplies own language:)If you find that any of the infant plaintiff's injuries are permanent, and it is uncontradicted that her Erb's palsy and its functional limitations and cosmetic deformity are permanent, you must award her an amount of money sufficient to compensate her for the pain, suffering and mental anguish and loss of ability to lead a normal life resulting from such permanent injuries, taking into consideration the period of time that has elapsed from the date of the injury to the present time and the period of time the plaintiff can be expected to live. According to life expectancy tables Caroline Reilly has an estimated life expectancy of approximately seventy four (74) more years. Such figure should be considered but is not binding upon you. But, in any case, you must award Caroline Reilly an amount of damages sufficient to compensate her for any permanent injuries. She cannot come back to this Court at any future date to recover more damages for her injuries. The amount of damages you award her must suffice for the rest of her | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Plaintiff supplies own language:)If you find that any of the infant plaintiff's injuries are permanent, and it is uncontradicted that her Erb's palsy and its functional limitations and cosmetic deformity are permanent, you must award her an amount of money sufficient to compensate her for the pain, suffering and mental anguish and loss of ability to lead a normal life resulting from such permanent injuries, taking into consideration the period of time that has elapsed from the date of the injury to the present time and the period of time the plaintiff can be expected to live. According to life expectancy tables Caroline Reilly has an estimated life expectancy of approximately seventy four (74) more years. Such figure should be considered but is not binding upon you. But, in any case, you must award Caroline Reilly an amount of damages sufficient to compensate her for any permanent injuries. She cannot come back to this Court at any future date to recover more damages for her injuries. The amount of damages you award her must suffice for the rest of her |
| life.17. . | life.17. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (Plaintiff adapts to this suit:)Secondly, if you find that the injuries sustained by plaintiff Caroline Reilly are permanent, and that she will be required to undertake medical, hospital or nursing expense in the future, or may incur any other reasonable and necessary expense for therapy or daily care by reason of said injuries, you must include in your verdict a sum for those anticipated expenses which are reasonably certain to be incurred in the | Damages—Personal Injury—Expenses Incurred (Plaintiff adapts to this suit:)Secondly, if you find that the injuries sustained by plaintiff Caroline Reilly are permanent, and that she will be required to undertake medical, hospital or nursing expense in the future, or may incur any other reasonable and necessary expense for therapy or daily care by reason of said injuries, you must include in your verdict a sum for those anticipated expenses which are reasonably certain to be incurred in the |
| future.18. . | future.18. PJI 2:317. |
| Damages—Derivative Action Re Child—Loss of Services (Plaintiff adapts to this suit:)With respect to the cause of action of Katherine Reilly for loss of her daughter's services, the law obligates a parent to care for their infant child and has a right to the services of that child. If you find that the plaintiff's mother is entitled to recover, you will award her damages for the pecuniary loss which you find she sustained by the loss of the infant plaintiff's services.Taking into consideration the extent to which the injuries the child sustained have disabled her from performing services which she otherwise would have performed for her parents, and with reasonable certainty, will disable her from performing services in the future up to the time the child becomes eighteen years of age, you will determine the reasonable value of the services of which the parents have been deprived as a result of the defendant's malpractice and that will constitute the amount of your award for the loss by the plaintiff's parents of the infant plaintiff's | Damages—Derivative Action Re Child—Loss of Services (Plaintiff adapts to this suit:)With respect to the cause of action of Katherine Reilly for loss of her daughter's services, the law obligates a parent to care for their infant child and has a right to the services of that child. If you find that the plaintiff's mother is entitled to recover, you will award her damages for the pecuniary loss which you find she sustained by the loss of the infant plaintiff's services.Taking into consideration the extent to which the injuries the child sustained have disabled her from performing services which she otherwise would have performed for her parents, and with reasonable certainty, will disable her from performing services in the future up to the time the child becomes eighteen years of age, you will determine the reasonable value of the services of which the parents have been deprived as a result of the defendant's malpractice and that will constitute the amount of your award for the loss by the plaintiff's parents of the infant plaintiff's |
| services.19. . | services.19. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (Plaintiff here requests this instruction be delivered verbatim, after adapting it in own language at instruction 17.)Author's Comment: Plaintiff's charge request reflects substantial research and deliberation. As the Committee has said, “The charge will be more comprenhensible to the jury and the jury's use of the charge is facilitated when the pattern charge is adapted to the facts of the particular case by counsel in stating requests and by the trial judge in preparing the charge.” 1A NY PJI3d, at xxxv (2018). Counsel has done a commendable job tailoring the pattern charges to the particular facts of the case, and arguing for modifications of pattern charges where appropriate.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2001 WL 34057735Jury Instruction (Plaintiff's Request to Charge), 2001 WL 348431362.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Damages—Personal Injury—Expenses Incurred (Plaintiff here requests this instruction be delivered verbatim, after adapting it in own language at instruction 17.)Author's Comment: Plaintiff's charge request reflects substantial research and deliberation. As the Committee has said, “The charge will be more comprenhensible to the jury and the jury's use of the charge is facilitated when the pattern charge is adapted to the facts of the particular case by counsel in stating requests and by the trial judge in preparing the charge.” 1A NY PJI3d, at xxxv (2018). Counsel has done a commendable job tailoring the pattern charges to the particular facts of the case, and arguing for modifications of pattern charges where appropriate.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2001 WL 34057735Jury Instruction (Plaintiff's Request to Charge), 2001 WL 348431362.Sample Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
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| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:14 Medical malpractice/Heart attack; wrongful death/One plaintiff, one defendantA. BackgroundType of Case: Medical malpractice, wrongful deathType of Injury: Heart attack; death.Case Name: Seema Abasit Rehman, Administratrix, Plaintiff v. Philip Varriale, M.D. DefendantCourt: Supreme Court of New York, New York CountyJudge: Barbara R. KapnickDocket Number: 108211/99Verdict Date: January, 2001Outcome: Judgment for defendantBrief Summary of Facts: Wrongful death action was brought when a 54-year-old security guard died after he was treated by the defendant cardiologist following a heart attack and was subsequently discharged and sent home from the non-party hospital. The plaintiff contended that the defendant failed to provide the decedent with adequate treatment, failed to perform appropriate diagnostic tests which would reveal his need of a pacemaker and failed to provide the proper standard of care. The defendant denied liability and contended that he performed all appropriate tests and that the decedent's death could not have been prevented. The decedent was survived by his adult daughter.B. Jury Instructions1. Instructions Proposed by DefendantDefendant did not always include PJI numbers or titles in | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:14 Medical malpractice/Heart attack; wrongful death/One plaintiff, one defendantA. BackgroundType of Case: Medical malpractice, wrongful deathType of Injury: Heart attack; death.Case Name: Seema Abasit Rehman, Administratrix, Plaintiff v. Philip Varriale, M.D. DefendantCourt: Supreme Court of New York, New York CountyJudge: Barbara R. KapnickDocket Number: 108211/99Verdict Date: January, 2001Outcome: Judgment for defendantBrief Summary of Facts: Wrongful death action was brought when a 54-year-old security guard died after he was treated by the defendant cardiologist following a heart attack and was subsequently discharged and sent home from the non-party hospital. The plaintiff contended that the defendant failed to provide the decedent with adequate treatment, failed to perform appropriate diagnostic tests which would reveal his need of a pacemaker and failed to provide the proper standard of care. The defendant denied liability and contended that he performed all appropriate tests and that the decedent's death could not have been prevented. The decedent was survived by his adult daughter.B. Jury Instructions1. Instructions Proposed by DefendantDefendant did not always include PJI numbers or titles in |
| request.1. . | request.1. PJI 2:150. |
| Malpractice—Physician (Defendant omits definition of negligence, although it is included in final paragraph, without using the word “negligence.” (In fact, the word “negligence” does not appear in this proposal, and the word “negligent” appears only once.) Defendant adds the word “good” in stating that malpractice is a “departure from good and accepted medical practice.” Defendant adds that such departure must be:)the competent producing cause of an injury sustained by a patient.(From second paragraph, Defendant replaces word “skill” with “ability.” Rather than “in the medical community in which the doctor practices,” Defendant requests “that is expected of doctors in the same specialty.” Defendant than adds, as to the requisite minimum standards:)Accordingly, Dr. Varriale was obligated to have that degree of knowledge and ability possessed by other physicians who specialize in cardiology in the community, which in this instance is New York County.(From third paragraph, Defendant replaces word “doctor” with “physician.” Rather than “a few doctors of exceptional ability,” Defendant requests “only a few people of rare endowment.” Rather than keeping informed of developments in his field, Defendant requests that a doctor “keep abreast.”)(From fourth paragraph, in discussing error that may make a doctor liable, Defendant calls it “mere error.” Defendant omits two further sentences about negligence: “The doctor is liable only if he was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.”)(From fifth paragraph, Defendant speaks of “careful examination” rather than “careful evaluation.” Defendant omits sixth paragraph, regarding the need for negligence to be a “substantial factor,” and instead includes, with citation:)The rule of reasonable care does not require the physician to exercise the highest possible degree of care; it requires only that he or she exercise that degree of care that a reasonably prudent physician would exercise under the same circumstances. (Centeno v. New York, 48 A.D.2d. 812, 369 N.Y. S.N.Y.S.2d, 710 (1st Dept. 1975) | Malpractice—Physician (Defendant omits definition of negligence, although it is included in final paragraph, without using the word “negligence.” (In fact, the word “negligence” does not appear in this proposal, and the word “negligent” appears only once.) Defendant adds the word “good” in stating that malpractice is a “departure from good and accepted medical practice.” Defendant adds that such departure must be:)the competent producing cause of an injury sustained by a patient.(From second paragraph, Defendant replaces word “skill” with “ability.” Rather than “in the medical community in which the doctor practices,” Defendant requests “that is expected of doctors in the same specialty.” Defendant than adds, as to the requisite minimum standards:)Accordingly, Dr. Varriale was obligated to have that degree of knowledge and ability possessed by other physicians who specialize in cardiology in the community, which in this instance is New York County.(From third paragraph, Defendant replaces word “doctor” with “physician.” Rather than “a few doctors of exceptional ability,” Defendant requests “only a few people of rare endowment.” Rather than keeping informed of developments in his field, Defendant requests that a doctor “keep abreast.”)(From fourth paragraph, in discussing error that may make a doctor liable, Defendant calls it “mere error.” Defendant omits two further sentences about negligence: “The doctor is liable only if he was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.”)(From fifth paragraph, Defendant speaks of “careful examination” rather than “careful evaluation.” Defendant omits sixth paragraph, regarding the need for negligence to be a “substantial factor,” and instead includes, with citation:)The rule of reasonable care does not require the physician to exercise the highest possible degree of care; it requires only that he or she exercise that degree of care that a reasonably prudent physician would exercise under the same circumstances. (Centeno v. New York, 48 A.D.2d. 812, 369 N.Y. S.N.Y.S.2d, 710 (1st Dept. 1975) |
| : | PJI 2: |
| 150)2. No corresponding pattern instruction, regarding physician's manner.A physician is not required to treat a patient in a particular manner merely because some other physician considers such a manner to be the best approach A physician is entitled to, as well as required to, consider his own experience in the selection of a manner in which to treat a | 150)2. No corresponding pattern instruction, regarding physician's manner.A physician is not required to treat a patient in a particular manner merely because some other physician considers such a manner to be the best approach A physician is entitled to, as well as required to, consider his own experience in the selection of a manner in which to treat a |
| patient.3. . | patient.3. PJI 2:150. |
| Malpractice—Physician (Defendant cites PJI 2:150 as the source for this instruction, although it is quite different:)If a patient should sustain an injury while undergoing medical care and that injury should result from the physician's lack of knowledge or ability, or from their failure to exercise reasonable care, or to use their best judgment, then the physician is responsible, but only for the injuries that are the result of his or her acts. They are not responsible for any injuries which are not the result of their acts. | Malpractice—Physician (Defendant cites PJI 2:150 as the source for this instruction, although it is quite different:)If a patient should sustain an injury while undergoing medical care and that injury should result from the physician's lack of knowledge or ability, or from their failure to exercise reasonable care, or to use their best judgment, then the physician is responsible, but only for the injuries that are the result of his or her acts. They are not responsible for any injuries which are not the result of their acts. |
| ()4. . | (PJI 2:150)4. PJI 1:23. |
| Burden of Proof (Defendant's requested charge varies considerably:)The plaintiff has the burden of proof. This means that the plaintiff must prove each and every element of his claim by a fair preponderance of the, credible evidence. Should the plaintiff fail to meet the burden of proof as to any material element of his claim, then your verdict must be for the defendant.The burden of proof rests upon the plaintiff to establish by a fair preponderance of the credible evidence that the defendant was negligent in the care of this patient in that the defendant deviated from accepted medical practice and further, that this deviation was the competent, substantial cause of the injuries claimed by the plaintiff. The burden of establishing both of these essential elements rests upon the plaintiff's. introduction of expert medical testimony | Burden of Proof (Defendant's requested charge varies considerably:)The plaintiff has the burden of proof. This means that the plaintiff must prove each and every element of his claim by a fair preponderance of the, credible evidence. Should the plaintiff fail to meet the burden of proof as to any material element of his claim, then your verdict must be for the defendant.The burden of proof rests upon the plaintiff to establish by a fair preponderance of the credible evidence that the defendant was negligent in the care of this patient in that the defendant deviated from accepted medical practice and further, that this deviation was the competent, substantial cause of the injuries claimed by the plaintiff. The burden of establishing both of these essential elements rests upon the plaintiff's. introduction of expert medical testimony |
| (; | (Pike v. Honsinger, 155 N.Y. 201 (1898); |
| McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65 (1964)).The burden is on the plaintiff in a civil action, such as this, to prove every essential element of his claim by a fair preponderance of the credible evidence; If the proof should fail to establish any essential element of plaintiff's claim by a preponderance of the evidence in the case, the jury must find for the defendant.To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.If the evidence is equally balanced between the plaintiff and the defendant on any issue, then the plaintiff has failed to meet the burden of proof and your verdict must be for the | McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65 (1964)).The burden is on the plaintiff in a civil action, such as this, to prove every essential element of his claim by a fair preponderance of the credible evidence; If the proof should fail to establish any essential element of plaintiff's claim by a preponderance of the evidence in the case, the jury must find for the defendant.To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.If the evidence is equally balanced between the plaintiff and the defendant on any issue, then the plaintiff has failed to meet the burden of proof and your verdict must be for the |
| defendant.5. . | defendant.5. PJI 2:70. |
| Proximate Cause—In General (Defendant's requested instruction is taken from a reported case, not from the pattern instruction:)If the plaintiff proves that the defendant committed malpractice, but fails to prove that such malpractice was the proximate cause of the plaintiffs' injuries, then your verdict must be for the defendant. If you find that the defendant deviated from accepted medical practice but also find that he did not cause the injuries alleged, your verdict must be for the defendant. Dorsey v. Knickerbocker Hospital, 26 A.D.2d 541, 271 N.Y.S.2d 727 (1st Dep't. | Proximate Cause—In General (Defendant's requested instruction is taken from a reported case, not from the pattern instruction:)If the plaintiff proves that the defendant committed malpractice, but fails to prove that such malpractice was the proximate cause of the plaintiffs' injuries, then your verdict must be for the defendant. If you find that the defendant deviated from accepted medical practice but also find that he did not cause the injuries alleged, your verdict must be for the defendant. Dorsey v. Knickerbocker Hospital, 26 A.D.2d 541, 271 N.Y.S.2d 727 (1st Dep't. |
| 1966).6. . | 1966).6. PJI 2:71. |
| Proximate Cause—Concurrent Causes (Defendant's requested instruction is taken from a reported case, not from the pattern instruction:)When there are two or more possible causes of an injury, one or more of which the defendant are not responsible for, the plaintiff has failed to meet his burden of proof and your verdict must be for the defendant. (Grant v. Pennsylvania and N.Y. Canal R., 133 N.Y. 657 (1892); Benson v. Dean, 232 N.Y. 52 (1921); Yaggle v. Allen, 24 A.D.594, 48 N.Y.S. 827 (3d Dep't. 1898)).7. No corresponding pattern instruction, regarding presumption of deviation from good accepted medical practice:A deviation or departure from good and accepted medical practice cannot be presumed from the result, nor may it be determined on the basis of hindsight, guess work or speculation. Henry v. Bronx Lebanon Hospital, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't. 1976); Garcia v. Nyack, 49 A.D.2d 937, 373 N.Y.S.2d 879 (N.Y.S.2d, Dep't. | Proximate Cause—Concurrent Causes (Defendant's requested instruction is taken from a reported case, not from the pattern instruction:)When there are two or more possible causes of an injury, one or more of which the defendant are not responsible for, the plaintiff has failed to meet his burden of proof and your verdict must be for the defendant. (Grant v. Pennsylvania and N.Y. Canal R., 133 N.Y. 657 (1892); Benson v. Dean, 232 N.Y. 52 (1921); Yaggle v. Allen, 24 A.D.594, 48 N.Y.S. 827 (3d Dep't. 1898)).7. No corresponding pattern instruction, regarding presumption of deviation from good accepted medical practice:A deviation or departure from good and accepted medical practice cannot be presumed from the result, nor may it be determined on the basis of hindsight, guess work or speculation. Henry v. Bronx Lebanon Hospital, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't. 1976); Garcia v. Nyack, 49 A.D.2d 937, 373 N.Y.S.2d 879 (N.Y.S.2d, Dep't. |
| 1975).8. . | 1975).8. PJI 2:70. |
| Proximate Cause—In General (Defendant omits sentence regarding concurrent cause; see also instructions 5 and | Proximate Cause—In General (Defendant omits sentence regarding concurrent cause; see also instructions 5 and |
| 6.)9. . | 6.)9. PJI 1:90. |
| General Instruction—Expert Witness (Defendant's requested instruction on expert witnesses is not based on the pattern instruction:)A finding that the plaintiffs' injuries were proximately caused by acts or omissions, which were deviations from good and accepted medical practice, must be supported by competent medical proof.Testimony introduced by the plaintiff seeking to establish medical deviation was the competent producing cause of the injuries claimed, must come from a physician qualified as an expert in that field. If from all of the testimony, you conclude that plaintiff's expert was not qualified to express the opinions that he did during the course of the trial, you may reject that opinion.The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call “expert witnesses.” Witnesses, who, by education and experience, have become expert in some art, science, profession, or calling may state their opinions as to relevant and material matters, in which they profess to be expert, and may also state their reasons for the opinion.You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion | General Instruction—Expert Witness (Defendant's requested instruction on expert witnesses is not based on the pattern instruction:)A finding that the plaintiffs' injuries were proximately caused by acts or omissions, which were deviations from good and accepted medical practice, must be supported by competent medical proof.Testimony introduced by the plaintiff seeking to establish medical deviation was the competent producing cause of the injuries claimed, must come from a physician qualified as an expert in that field. If from all of the testimony, you conclude that plaintiff's expert was not qualified to express the opinions that he did during the course of the trial, you may reject that opinion.The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call “expert witnesses.” Witnesses, who, by education and experience, have become expert in some art, science, profession, or calling may state their opinions as to relevant and material matters, in which they profess to be expert, and may also state their reasons for the opinion.You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion |
| entirely10. . | entirely10. PJI 1:25. |
| Consider Only Testimony and Exhibits (Defendant derived this from second sentence of pattern instruction:)I remind you that the statements of attorneys are not evidence and that you are not to consider them as such in rendering your verdict. This includes not only the closing statements which you have just heard, but also the opening statements presented to you at the inception of the case and any statement made by counsel during the course of the | Consider Only Testimony and Exhibits (Defendant derived this from second sentence of pattern instruction:)I remind you that the statements of attorneys are not evidence and that you are not to consider them as such in rendering your verdict. This includes not only the closing statements which you have just heard, but also the opening statements presented to you at the inception of the case and any statement made by counsel during the course of the |
| trial.11. . | trial.11. PJI 1:27. |
| Exclude Sympathy (Defendant presents part of first sentence only:)You are not to be affected by sympathy for any of the parties in reaching your | Exclude Sympathy (Defendant presents part of first sentence only:)You are not to be affected by sympathy for any of the parties in reaching your |
| verdict.12. . | verdict.12. PJI 1:37. |
| Jury Function (Defendant uses own language:)You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testified, or by the character of the testimony given, or by evidence to the contrary of the testimony | Jury Function (Defendant uses own language:)You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testified, or by the character of the testimony given, or by evidence to the contrary of the testimony |
| given.13. . | given.13. PJI 1:8. |
| Weighing Testimony & 1:91 General Instruction—Interested Witness—Generally (Defendant's requested charge is derived from pattern instructions 1:8 and 1:91, although in very different language:)You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, as well as demeanor and manner while on the stand. Consider the witness's ability to observe the matters as to which he or she has testified, and whether they impress you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from an innocent error or intentional falsehood.After making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it | Weighing Testimony & 1:91 General Instruction—Interested Witness—Generally (Defendant's requested charge is derived from pattern instructions 1:8 and 1:91, although in very different language:)You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, as well as demeanor and manner while on the stand. Consider the witness's ability to observe the matters as to which he or she has testified, and whether they impress you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from an innocent error or intentional falsehood.After making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it |
| deserves.14. . | deserves.14. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict15. . | Verdict15. PJI 2:277. |
| Damages—General (Defendant's first paragraph is original; it is followed by text of pattern instruction. The first paragraph is:)I charge you that you may not consider the issue of damages until you have determined that liability exists against the defendant. You are not to discuss damages unless you complete your discussion on the issue of liability and determine that liability exists. If at the completion of your discussion of liability you conclude that no liability exists, you are to return a verdict for the defendant without entering into any discussion on, the issue of | Damages—General (Defendant's first paragraph is original; it is followed by text of pattern instruction. The first paragraph is:)I charge you that you may not consider the issue of damages until you have determined that liability exists against the defendant. You are not to discuss damages unless you complete your discussion on the issue of liability and determine that liability exists. If at the completion of your discussion of liability you conclude that no liability exists, you are to return a verdict for the defendant without entering into any discussion on, the issue of |
| damages.16. . | damages.16. PJI 2:151A(1). |
| Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized | Malpractice—Medical, Dental and Podiatric Malpractice—Damages—Itemized |
| Verdict17. . | Verdict17. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Regarding income taxes)Author's Comment: The defense has done a creditable job of rephrasing some of the pattern charges—presumably for the purpose of relating them more closely to the actual testimony heard in this case. “Each case has its own unique elements and application of the law and the facts of the case will indicate to what extent a given charge should be modified or even rejected.” 1A NY PJI3d, at xxxv (2018).2. Instructions Proposed by | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Regarding income taxes)Author's Comment: The defense has done a creditable job of rephrasing some of the pattern charges—presumably for the purpose of relating them more closely to the actual testimony heard in this case. “Each case has its own unique elements and application of the law and the facts of the case will indicate to what extent a given charge should be modified or even rejected.” 1A NY PJI3d, at xxxv (2018).2. Instructions Proposed by |
| Plaintiff1. . | Plaintiff1. PJI 1:61. |
| Burden of Proof—Death | Burden of Proof—Death |
| Case2. . | Case2. PJI 1:90. |
| Expert | Expert |
| Witness3. . | Witness3. PJI 2:150. |
| Doctor | Doctor |
| Malpractice4. . | Malpractice4. PJI 2:70. |
| Proximate Cause (Plaintiff asks for the following language:)There can be more than one legal cause of death. Plaintiff need not exclude all other possible causes. it is sufficient if the defendant's conduct was a substantial factor in causing Plaintiff's death.In considering the question of proximate cause in this case, the law does not require that the Plaintiff show to a certainty that Mr. Rehman would have been saved had the Defendant not been negligent. If you conclude that there was a substantial possibility that the Plaintiff could have better survived had the Defendant referred the Plaintiff for angiography or an electrical work-up before discharge, then the Defendant is liable for the Plaintiff.If, however, you conclude that the substantial possibility did not exist, then Plaintiff has not established that he suffered any injury as a result of Defendant's negligence and he is therefore not entitled to recover (Mortensen v. Memorial Hospital, 105 A.D.2d 151, 483 N.Y.S.2d 264 (1st Dept., | Proximate Cause (Plaintiff asks for the following language:)There can be more than one legal cause of death. Plaintiff need not exclude all other possible causes. it is sufficient if the defendant's conduct was a substantial factor in causing Plaintiff's death.In considering the question of proximate cause in this case, the law does not require that the Plaintiff show to a certainty that Mr. Rehman would have been saved had the Defendant not been negligent. If you conclude that there was a substantial possibility that the Plaintiff could have better survived had the Defendant referred the Plaintiff for angiography or an electrical work-up before discharge, then the Defendant is liable for the Plaintiff.If, however, you conclude that the substantial possibility did not exist, then Plaintiff has not established that he suffered any injury as a result of Defendant's negligence and he is therefore not entitled to recover (Mortensen v. Memorial Hospital, 105 A.D.2d 151, 483 N.Y.S.2d 264 (1st Dept., |
| 1984).5. . | 1984).5. PJI 2:320. |
| Damages Wrongful Death (Plaintiff asks that instruction be given “with following from PJI, Page 1374”:Accordingly, it is proper to instruct the jury; “You must also take into consideration the intellectual, moral and physical training, guidance and assistance he [the decedent] would have given the children had he lived,” Kenavan. New York [120 A.D.2d 24, 507 N.Y.S.2d 193 (2d Dep't 1986), | Damages Wrongful Death (Plaintiff asks that instruction be given “with following from PJI, Page 1374”:Accordingly, it is proper to instruct the jury; “You must also take into consideration the intellectual, moral and physical training, guidance and assistance he [the decedent] would have given the children had he lived,” Kenavan. New York [120 A.D.2d 24, 507 N.Y.S.2d 193 (2d Dep't 1986), |
| , | aff'd, |
| 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872 (1987)]. Further, proof that the decedent performed household duties for his spouse and provided love, guidance and advice to their adult children is sufficient proof of pecuniary loss to sustain at least some | 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872 (1987)]. Further, proof that the decedent performed household duties for his spouse and provided love, guidance and advice to their adult children is sufficient proof of pecuniary loss to sustain at least some |
| damages. . .”6. . | damages. . .”6. PJI 2:320.5. |
| Damages—Wrongful | Damages—Wrongful |
| Death—Services7. . | Death—Services7. PJI 2:281. |
| Permanence Life Expectancy Tables ——— YearsAuthor's comment: Plaintiff appropriately cites authority for proposed modifications or enhancements and draws on PJI comments.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2001 WL 34394846Verdict, Agreement and Settlement, 2002 WL 32902302Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2001 WL 34817560Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Motion for Summary Judgment), 2001 WL 34817559Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2001 WL 35936378Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Motion for Summary Judgment), 2001 WL 35936379Trial Pleading (Verified Answer), 1999 WL 33985378Trial Pleading (Plaintiff's Verified Complaint), 1999 WL 33962897Jury Instruction (Plaintiff's Request to Charge and Jury Interrogatories), 2002 WL 32902306Jury Instruction (Requests to Charge Submitted on Behalf of Defendant), | Permanence Life Expectancy Tables ——— YearsAuthor's comment: Plaintiff appropriately cites authority for proposed modifications or enhancements and draws on PJI comments.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2001 WL 34394846Verdict, Agreement and Settlement, 2002 WL 32902302Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2001 WL 34817560Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Motion for Summary Judgment), 2001 WL 34817559Trial Motion, Memorandum and Affidavit (Memorandum of Law), 2001 WL 35936378Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Motion for Summary Judgment), 2001 WL 35936379Trial Pleading (Verified Answer), 1999 WL 33985378Trial Pleading (Plaintiff's Verified Complaint), 1999 WL 33962897Jury Instruction (Plaintiff's Request to Charge and Jury Interrogatories), 2002 WL 32902306Jury Instruction (Requests to Charge Submitted on Behalf of Defendant), |
| 2.Sample | 2002 WL 329023072.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“malpractice and medic! or physician or doctor or hospital or surgeon”D. Research References1.Key |
| Numbers | NumbersHealth 600 |
| to | to |
| 835Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:22, |
| , , | 6:30, 6:31, 6:368 |
| to | to |
| , , | 6:370, 7:6, 7:11 |
| to | to |
| , , ; | 7:15, 7:85, 7:209; |
| 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:15 Medical malpractice/ Negligent surgery (enterectomy); wrongful death/ One plaintiff, four defendantsA. BackgroundType of Case: Medical malpractice; wrongful death following enterectomy; alleged negligent excision of desmoid tumor; one plaintiff, four defendantsType of Injury: Death following enterectomyCase Name: Scott Douglas, as Administrator of the Goods, Chattels and Credits of the Estate of Sally Douglas, Deceased, and on behalf of her Distributees, Plaintiffs, v. Memorial Hospital For Cancer and Allied Diseases a/k/a Memorial Sloan-Kettering Cancer Center, Daniel Coit, M.D., Ronald P. Dematteo, M.D., and Robert Topf, M.D., Defendants.Court: Supreme Court of New York, New York CountyJudge: Sheila Abdus-SalaamDocket Number: 107781 / 00Verdict Date: March 2006Outcome: Defense verdictBrief Summary of Facts: This wrongful death action was brought after a 44-year-old female died after an enterectomy performed at the defendant hospital, where she was a patient, by the remaining defendant physicians. The plaintiff contended that the defendants failed to timely and properly diagnose and treat the decedent's condition, negligently performed the excision of a desmoid tumor which resulted in her fatal injuries, and failed to provide the proper standard of care. The defendants denied liability, disputed the nature of the decedent's fatal injuries, and contended that their care of the decedent was within acceptable medical standards at all times. The decedent was survived by her spouse and three minor children.B. Jury Instructions Proposed by the | 7:209A, 7:356, 7:604, 7:871, 8:300A to 8:348, 9:160, 9:161§ 5:15 Medical malpractice/ Negligent surgery (enterectomy); wrongful death/ One plaintiff, four defendantsA. BackgroundType of Case: Medical malpractice; wrongful death following enterectomy; alleged negligent excision of desmoid tumor; one plaintiff, four defendantsType of Injury: Death following enterectomyCase Name: Scott Douglas, as Administrator of the Goods, Chattels and Credits of the Estate of Sally Douglas, Deceased, and on behalf of her Distributees, Plaintiffs, v. Memorial Hospital For Cancer and Allied Diseases a/k/a Memorial Sloan-Kettering Cancer Center, Daniel Coit, M.D., Ronald P. Dematteo, M.D., and Robert Topf, M.D., Defendants.Court: Supreme Court of New York, New York CountyJudge: Sheila Abdus-SalaamDocket Number: 107781 / 00Verdict Date: March 2006Outcome: Defense verdictBrief Summary of Facts: This wrongful death action was brought after a 44-year-old female died after an enterectomy performed at the defendant hospital, where she was a patient, by the remaining defendant physicians. The plaintiff contended that the defendants failed to timely and properly diagnose and treat the decedent's condition, negligently performed the excision of a desmoid tumor which resulted in her fatal injuries, and failed to provide the proper standard of care. The defendants denied liability, disputed the nature of the decedent's fatal injuries, and contended that their care of the decedent was within acceptable medical standards at all times. The decedent was survived by her spouse and three minor children.B. Jury Instructions Proposed by the |
| Defendants:1. . | Defendants:1. PJI 1:22. |
| Falsus In | Falsus In |
| Uno.2. . | Uno.2. PJI 1:23. |
| Burden of | Burden of |
| Proof.3. . | Proof.3. PJI 1:27. |
| Exclude | Exclude |
| Sympathy.4. . | Sympathy.4. PJI 1:37. |
| Jury | Jury |
| Function.5. . | Function.5. PJI 1:38. |
| Court's | Court's |
| Function.6. . | Function.6. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings.7. . | Rulings.7. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence.8. . | Evidence.8. PJI 1:41. |
| Weighing | Weighing |
| Testimony.9. . | Testimony.9. PJI 1:60. |
| Burden of Proof — When Burden Differs on Different Issues.10. PJI 75. Failure to Produce | Burden of Proof — When Burden Differs on Different Issues.10. PJI 75. Failure to Produce |
| Witness.11. . | Witness.11. PJI 1:90. |
| Expert | Expert |
| witness.12. . | witness.12. PJI 1:91. |
| Interested | Interested |
| witness.13. . | witness.13. PJI 2:70. |
| Proximate | Proximate |
| cause.14. . | cause.14. PJI 2:150. |
| Malpractice — | Malpractice — |
| Physician.15. . | Physician.15. PJI 2:150A. |
| Malpractice — Informed | Malpractice — Informed |
| Consent16. .1 | Consent16. PJI 2:151C.1 |
| or 2:151C.2. Income taxes from lost | or 2:151C.2. Income taxes from lost |
| earnings.17. . | earnings.17. PJI 2:277. |
| Damages — General.Supplemental proposed charges18. Liability for malpractice must be based upon facts confronting defendants at the time the medical care at issue was rendered. You are not to judge the conduct of defendants by hindsight as to what should have been, nor are you to judge defendants in retrospect and in light of subsequent events. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 319 N.Y.S.2d 674 (2d Dep't 1971).19. Where alternative procedures are available to a physician, any one of which procedures is medically acceptable and proper, then the physician cannot be held liable for malpractice when he uses one of the acceptable procedures even if he did not follow an alternative method which other physicians might use under similar circumstances. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schreiber v. Cestari, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2d Dep't 1972).C. Case Documents Available on Westlaw1. Verdict and Settlement Summary, | Damages — General.Supplemental proposed charges18. Liability for malpractice must be based upon facts confronting defendants at the time the medical care at issue was rendered. You are not to judge the conduct of defendants by hindsight as to what should have been, nor are you to judge defendants in retrospect and in light of subsequent events. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 319 N.Y.S.2d 674 (2d Dep't 1971).19. Where alternative procedures are available to a physician, any one of which procedures is medically acceptable and proper, then the physician cannot be held liable for malpractice when he uses one of the acceptable procedures even if he did not follow an alternative method which other physicians might use under similar circumstances. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schreiber v. Cestari, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2d Dep't 1972).C. Case Documents Available on Westlaw1. Verdict and Settlement Summary, |
| Jury | 2006 WL 4667856Jury |
| Instructions (Defendants' Request to Charge), 2003 WL 24284552Verdict, Agreement and Settlement (Verdict Sheet), 2003 WL 24284551Trial Motion, Memorandum and Affidavit (Memorandum of Law), | Instructions (Defendants' Request to Charge), 2003 WL 24284552Verdict, Agreement and Settlement (Verdict Sheet), 2003 WL 24284551Trial Motion, Memorandum and Affidavit (Memorandum of Law), |
| Trial | 2003 WL 24282788Trial |
| Motion, Memorandum and Affidavit (Plaintiffs' Response to Defendants' Memorandum of Law), | Motion, Memorandum and Affidavit (Plaintiffs' Response to Defendants' Memorandum of Law), |
| Trial | 2003 WL 24282784Trial |
| Motion, Memorandum and Affidavit (Affirmation in Support of Order to Show Cause), | Motion, Memorandum and Affidavit (Affirmation in Support of Order to Show Cause), |
| Trial | 2003 WL 24282780Trial |
| Motion, Memorandum and Affidavit (Plaintiffs' Response to Defendants' Memorandum of Law Regarding Standards of Care), | Motion, Memorandum and Affidavit (Plaintiffs' Response to Defendants' Memorandum of Law Regarding Standards of Care), |
| Trial | 2003 WL 24282781Trial |
| Motion, Memorandum and Affidavit (Plaintiffs' Response to Defendants' Motion to Dismiss Plaintiffs' Informed Consent Cause of Action) | Motion, Memorandum and Affidavit (Plaintiffs' Response to Defendants' Motion to Dismiss Plaintiffs' Informed Consent Cause of Action) |
| Trial | 2003 WL 24282786Trial |
| Pleading (Verified Answer), | Pleading (Verified Answer), |
| 2. Sample | 2000 WL 346062402. Sample |
| Westlaw Query for Trial Court Documents in Similar Cases: malpractice /p enterectomyD. Research References1.Key | Westlaw Query for Trial Court Documents in Similar Cases: malpractice /p enterectomyD. Research References1.Key |
| Numbers , , , 2.Westlaw | NumbersHealth 655, 665, 667, 8272.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsFailure to Inform Patient of Nature and Hazards of Surgery, 8 Am. Jur. Proof of Facts 2d 1454.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:161§ 5:16 Medical malpractice/Eye injury; one plaintiff, multiple defendantsA. BackgroundType of Case: Medical malpracticeType of Injury: EyeCase Name: Mark Schiffer v Mark G. Speaker, M.D., Laser and COrneal Surgery Associates, P.C., TLC Laser Eye Center, Regina Zyszkowski and Drs. Farkas, Kasalow, Resnick and Associates, P.C.Court: Supreme Court of New York, New York CountyJudge: Alice SchlesingerDocket Number: 101191 / 03Verdict Date: July, 2005Outcome: Verdict for plaintiff $7,250,000Brief Summary of Facts: A 32-year-old male investment banker suffered blurred vision in his left eye that required the replacement of the cornea after he underwent Lasik surgery performed by the male defendant ophthalmologist at the codefendant medical centers. The plaintiff contended that the defendant failed to properly perform a pre-surgical diagnostic exam, failed to identify his preexisting keratoconus, failed to inform him of the risks associated with the procedure, and failed to provide the proper standard of care. The defendants denied liability and contended that the plaintiff's condition did not interfere with the surgery.B. Charge Requests1. Jury Instructions Requested by Defendant TLC The Laser Center (Northeast) | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsFailure to Inform Patient of Nature and Hazards of Surgery, 8 Am. Jur. Proof of Facts 2d 1454.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:161§ 5:16 Medical malpractice/Eye injury; one plaintiff, multiple defendantsA. BackgroundType of Case: Medical malpracticeType of Injury: EyeCase Name: Mark Schiffer v Mark G. Speaker, M.D., Laser and COrneal Surgery Associates, P.C., TLC Laser Eye Center, Regina Zyszkowski and Drs. Farkas, Kasalow, Resnick and Associates, P.C.Court: Supreme Court of New York, New York CountyJudge: Alice SchlesingerDocket Number: 101191 / 03Verdict Date: July, 2005Outcome: Verdict for plaintiff $7,250,000Brief Summary of Facts: A 32-year-old male investment banker suffered blurred vision in his left eye that required the replacement of the cornea after he underwent Lasik surgery performed by the male defendant ophthalmologist at the codefendant medical centers. The plaintiff contended that the defendant failed to properly perform a pre-surgical diagnostic exam, failed to identify his preexisting keratoconus, failed to inform him of the risks associated with the procedure, and failed to provide the proper standard of care. The defendants denied liability and contended that the plaintiff's condition did not interfere with the surgery.B. Charge Requests1. Jury Instructions Requested by Defendant TLC The Laser Center (Northeast) |
| Inc.1. . Introduction2. . | Inc.1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus In | Falsus In |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:26B. |
| Special | Special |
| Verdict9. . | Verdict9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy10. . | Sympathy10. PJI 1:50. |
| Malpractice | Malpractice |
| Physician11. . | Physician11. PJI 1:75. |
| Failure to Produce | Failure to Produce |
| Witness12. . | Witness12. PJI 1:90. |
| Expert | Expert |
| Witnesses13. . Negligence14. . Foreseeability15. . | Witnesses13. PJI 2:10. Negligence14. PJI 2:12. Foreseeability15. PJI 2:255. |
| Vicarious Responsibility — Independent Contractor — General Rule Supplemental Charge — Ostensible Agency — Surgical | Vicarious Responsibility — Independent Contractor — General Rule Supplemental Charge — Ostensible Agency — Surgical |
| Facility16. . | Facility16. PJI 2:70. |
| Proximate | Proximate |
| Cause17. . | Cause17. PJI 2:150A. |
| Malpractice Informed | Malpractice Informed |
| Consent18. . | Consent18. PJI 2:151C. |
| Lost Earnings and taxes | Lost Earnings and taxes |
| charge.19. . | charge.19. PJI 2:277. |
| Damages — | Damages — |
| General20. . | General20. PJI 2:77A. |
| Suggesting an Amount of | Suggesting an Amount of |
| Compensation.21. . | Compensation.21. PJI 2:325. |
| Mitigation — General | Mitigation — General |
| Principles.22. . | Principles.22. PJI 2:255. |
| Vicarious Responsibility — Independent Contractor — General RuleIf you find that the plaintiff is entitled to recover from Dr. Speaker, you must then decide whether Dr. Speaker was TLC's employee or an independent contractor. If Dr. Speaker was TLC's employee, TLC is liable for Dr. Speaker's conduct; but if Dr. Speaker was an independent contractor, TLC is not responsible for Dr. Speaker's acts.Whether Dr. Speaker was TLC's employee or independent contractor is a question for you to decide after considering all the facts and circumstances of this case. An independent contractor is one who performs services for another, according to his or her own skill and judgment as to the manner or method of performance, free from the control and direction of the person for whom the services are being performed in all matters connected with the manner or method of performance, except as to when and where, in general, it should be done and the result or product of the work. In determining whether Dr. Speaker was TLC's employee or an independent contractor, you may consider the following factors: [whether Dr. Speaker was a skilled and licensed professional; whether Dr. Speaker performed surgical procedures other than refractive surgery at TLC; whether Dr. Speaker maintained a private medical practice apart from his work at TLC; whether Dr. Speaker maintained an office at TLC; whether Dr. Speaker exercised his own skill and judgment in deciding whether the plaintiff was a candidate for LASIK surgery and in rendering treatment to the plaintiff; how Dr. Speaker was compensated by TLC for treating the plaintiff at TLC; the days and hours that Dr. Speaker practiced at TLC; the terms of any employment agreement between Dr. Speaker and TLC; and who controlled or made decisions concerning the methods, means or procedures employed in treating the plaintiff.]Not one of these factors is decisive. If on consideration of the evidence as a whole, you find that Dr. Speaker was subject to the direction and control of TLC as to the manner or method of performing the work, your finding will be that he was an employee of TLC. If, however, you find that Dr. Speaker was free from control or direction by TLC as to the manner or method of performing the [surgery], your finding will be that he was an independent contractor for whose conduct TLC is not responsible. | Vicarious Responsibility — Independent Contractor — General RuleIf you find that the plaintiff is entitled to recover from Dr. Speaker, you must then decide whether Dr. Speaker was TLC's employee or an independent contractor. If Dr. Speaker was TLC's employee, TLC is liable for Dr. Speaker's conduct; but if Dr. Speaker was an independent contractor, TLC is not responsible for Dr. Speaker's acts.Whether Dr. Speaker was TLC's employee or independent contractor is a question for you to decide after considering all the facts and circumstances of this case. An independent contractor is one who performs services for another, according to his or her own skill and judgment as to the manner or method of performance, free from the control and direction of the person for whom the services are being performed in all matters connected with the manner or method of performance, except as to when and where, in general, it should be done and the result or product of the work. In determining whether Dr. Speaker was TLC's employee or an independent contractor, you may consider the following factors: [whether Dr. Speaker was a skilled and licensed professional; whether Dr. Speaker performed surgical procedures other than refractive surgery at TLC; whether Dr. Speaker maintained a private medical practice apart from his work at TLC; whether Dr. Speaker maintained an office at TLC; whether Dr. Speaker exercised his own skill and judgment in deciding whether the plaintiff was a candidate for LASIK surgery and in rendering treatment to the plaintiff; how Dr. Speaker was compensated by TLC for treating the plaintiff at TLC; the days and hours that Dr. Speaker practiced at TLC; the terms of any employment agreement between Dr. Speaker and TLC; and who controlled or made decisions concerning the methods, means or procedures employed in treating the plaintiff.]Not one of these factors is decisive. If on consideration of the evidence as a whole, you find that Dr. Speaker was subject to the direction and control of TLC as to the manner or method of performing the work, your finding will be that he was an employee of TLC. If, however, you find that Dr. Speaker was free from control or direction by TLC as to the manner or method of performing the [surgery], your finding will be that he was an independent contractor for whose conduct TLC is not responsible. |
| [.]Author's | [PJI 2:255.]Author's |
| Comment: For the pattern charge distinguishing between independent contractor and employee for purposes of vicarious responsibility, see | Comment: For the pattern charge distinguishing between independent contractor and employee for purposes of vicarious responsibility, see |
| . | PJI 2:255. |
| The above requested charge follows | The above requested charge follows |
| PJI 2:255 |
| in the first few sentences, then adapts it to the particular facts of the case.23. Supplemental Charge — Ostensible Agency — Surgical FacilityIf you find that Dr. Speaker was an independent contractor, you must then decide whether the defendants in this case represented to the plaintiff that TLC was providing the LASIK treatment and that on the basis of that representation, plaintiff chose to have the procedure performed at TLC rather than from any particular physician. In making this determination, you may consider the following factors: whether the plaintiff sought his medical services directly from TLC; whether he responded to any solicitation or advertising by TLC; whether Dr. Speaker was assigned or furnished by TLC to provide medical services to the plaintiff; whether the plaintiff was referred to TLC or to Dr. Speaker; whether Dr. Speaker represented himself as an employee of TLC by statements, actions or appearances; or whether the plaintiff considered himself a patient of Dr. Speaker or TLC. If on consideration of the evidence as a whole, you find that the plaintiff reasonably believed that Dr. Speaker was provided by TLC or otherwise acting on TLC's behalf, then your finding will be that he was acting as an agent of TLC for whose conduct TLC is responsible. If, however, you find that it was unreasonable for plaintiff to believe that Dr. Speaker was provided by TLC or otherwise acting on TLC's behalf, then your finding will be that Dr. Speaker was not an agent and TLC is not responsible for his conduct. Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 490 N.E.2d 823 (1986), Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (3d Dept 1976); | in the first few sentences, then adapts it to the particular facts of the case.23. Supplemental Charge — Ostensible Agency — Surgical FacilityIf you find that Dr. Speaker was an independent contractor, you must then decide whether the defendants in this case represented to the plaintiff that TLC was providing the LASIK treatment and that on the basis of that representation, plaintiff chose to have the procedure performed at TLC rather than from any particular physician. In making this determination, you may consider the following factors: whether the plaintiff sought his medical services directly from TLC; whether he responded to any solicitation or advertising by TLC; whether Dr. Speaker was assigned or furnished by TLC to provide medical services to the plaintiff; whether the plaintiff was referred to TLC or to Dr. Speaker; whether Dr. Speaker represented himself as an employee of TLC by statements, actions or appearances; or whether the plaintiff considered himself a patient of Dr. Speaker or TLC. If on consideration of the evidence as a whole, you find that the plaintiff reasonably believed that Dr. Speaker was provided by TLC or otherwise acting on TLC's behalf, then your finding will be that he was acting as an agent of TLC for whose conduct TLC is responsible. If, however, you find that it was unreasonable for plaintiff to believe that Dr. Speaker was provided by TLC or otherwise acting on TLC's behalf, then your finding will be that Dr. Speaker was not an agent and TLC is not responsible for his conduct. Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 490 N.E.2d 823 (1986), Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (3d Dept 1976); |
| [,2:255]2. Jury | [PJI 2:251,2:255]2. Jury |
| Instructions Requested by Defendants Mark G. Speaker, M.D., and Laser and Corneal Surgery Associates, | Instructions Requested by Defendants Mark G. Speaker, M.D., and Laser and Corneal Surgery Associates, |
| P.C.:1. . | P.C.:1. PJI 1:22. |
| Falsus in Uno (modified, Transcript page 1, by replacing “unbelievable” with “unworthy of | Falsus in Uno (modified, Transcript page 1, by replacing “unbelievable” with “unworthy of |
| belief.”)2. . | belief.”)2. PJI 1:23. |
| Burden of | Burden of |
| proof3. . | proof3. PJI 1:27. |
| Exclude | Exclude |
| Sympathy4. . | Sympathy4. PJI 1:37. |
| Jury Function (modified, Transcript page 3, by excluding, “As the sole judges of the facts, you must decide which of the witnesses you believed, what portion of their testimony you accepted, and what weight you give to | Jury Function (modified, Transcript page 3, by excluding, “As the sole judges of the facts, you must decide which of the witnesses you believed, what portion of their testimony you accepted, and what weight you give to |
| it.”)5. . | it.”)5. PJI 1:38. |
| Court's Function (modified, Transcript page 3, by omitting, “You are not to ask anyone else about the law. You should not consider or accept any advice about the law from anyone else but | Court's Function (modified, Transcript page 3, by omitting, “You are not to ask anyone else about the law. You should not consider or accept any advice about the law from anyone else but |
| me.”)6. . | me.”)6. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings.7. . | Rulings.7. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence.8. . | Evidence.8. PJI 1:41. |
| Weighing | Weighing |
| Testimony9. . | Testimony9. PJI 1:60. |
| General Instruction — Burden of Proof — when Burden Differs on Different | General Instruction — Burden of Proof — when Burden Differs on Different |
| Issues10. . | Issues10. PJI 1:75. |
| General Instruction — Evidence — Failure to Produce Witness — In | General Instruction — Evidence — Failure to Produce Witness — In |
| General.11. . | General.11. PJI 1:90. |
| General Instruction — Expert | General Instruction — Expert |
| Witness12. . | Witness12. PJI 1:90.2. |
| General Instruction — Expert Witness (articles or treatises mentioned on cross-examination)Author's Note: The subject matter of former | General Instruction — Expert Witness (articles or treatises mentioned on cross-examination)Author's Note: The subject matter of former |
| PJI 1:90.2 |
| is now covered in | is now covered in |
| , | PJI 1:90.1, |
| which also revises the former instruction by instructing jurors that the fact that an expert did not recognize a work cited by another expert as authoritative should not be used in deciding the weight to be given the testimony of the | which also revises the former instruction by instructing jurors that the fact that an expert did not recognize a work cited by another expert as authoritative should not be used in deciding the weight to be given the testimony of the |
| latter.13. . | latter.13. PJI 1:91. |
| General Instruction — Interested Witness — | General Instruction — Interested Witness — |
| Generally14. . | Generally14. PJI 2:70. |
| Proximate Cause — In | Proximate Cause — In |
| General15. . | General15. PJI 2:150. |
| Malpractice — | Malpractice — |
| Physician16. . | Physician16. PJI 2:150A. |
| Malpractice — Informed | Malpractice — Informed |
| Consent17. . | Consent17. PJI 2:151C. |
| Malpractice — Medical, Dental and Podiatric Malpractice — Income Taxation of Lost | Malpractice — Medical, Dental and Podiatric Malpractice — Income Taxation of Lost |
| Earnings18. . | Earnings18. PJI 2:277. |
| Damages — | Damages — |
| General19. . | General19. PJI 2:277A. |
| Damages — Comment by Counsel during Opening or Closing | Damages — Comment by Counsel during Opening or Closing |
| Remarks20. . | Remarks20. PJI 2:325. |
| Damages — Mitigation — General Principles (Failure to Have an | Damages — Mitigation — General Principles (Failure to Have an |
| Operation)21. . | Operation)21. PJI 2:275.1. |
| Comparative Fault — Plaintiff's and Defendants' Comparative Fault (modified, Transcript page 19, by omission of language applicable to apportionment of fault among several defendants).22. Liability for malpractice must be based upon facts confronting defendant at the time of the medical care. You are not to judge the conduct of defendant by hindsight as to what should have been, nor are you to judge defendant in retrospect and in light of subsequent events. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 319 N.Y.S.2d 674 (2d Dep't 1971).23. Where alternative procedures are available to a physician, any one of which procedures is professionally acceptable and proper, then defendant cannot be held liable for malpractice when he or she uses one of the acceptable procedures even if he or she did not follow an alternative method which other physicians might use under similar circumstances. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schreiber v. Cestari, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2d Dep't 1972).C. Case Documents Available on Westlaw1. Jury Instruction — Charge Request of Defendants Mark G. Speaker, M.D., and Laser and Corneal Surgery Associates, P.C., 2005 WL 5544989Jury Instruction — Charge Request of Defendant TLC The Laser Center (Northeast) Inc., 2005 WL 5544988Appellate Decision, Schiffer v. Speaker, 36 A.D.3d 520, 828 N.Y.S.2d 363 (1st Dept. 2007) (affirming Supreme Court decision finding clinic not vicariously liableTrial court decision — decision denying clinic's motion for summary judgment; granting plaintiff's motion for protective order regarding certain disclosures) Schiffer v. Speaker, 6 Misc.3d 1010(A), 800 N.Y.S.2d 356 (Table), 2004 WL 3115145 (N.Y.Sup. 2004)Trial court decision — order granting in part and denying in part defendants' motion to compel disclosure, Schiffer v. Speaker, 4 Misc.3d 1022(A), 798 N.Y.S.2d 348 (Table), 2004 WL 2059504 (N.Y.Sup. 2004)Trial Motion, Memorandum and Affidavit — Reply Affirmation, | Comparative Fault — Plaintiff's and Defendants' Comparative Fault (modified, Transcript page 19, by omission of language applicable to apportionment of fault among several defendants).22. Liability for malpractice must be based upon facts confronting defendant at the time of the medical care. You are not to judge the conduct of defendant by hindsight as to what should have been, nor are you to judge defendant in retrospect and in light of subsequent events. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 319 N.Y.S.2d 674 (2d Dep't 1971).23. Where alternative procedures are available to a physician, any one of which procedures is professionally acceptable and proper, then defendant cannot be held liable for malpractice when he or she uses one of the acceptable procedures even if he or she did not follow an alternative method which other physicians might use under similar circumstances. Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't 1976); Schreiber v. Cestari, 40 A.D.2d 1025, 338 N.Y.S.2d 972 (2d Dep't 1972).C. Case Documents Available on Westlaw1. Jury Instruction — Charge Request of Defendants Mark G. Speaker, M.D., and Laser and Corneal Surgery Associates, P.C., 2005 WL 5544989Jury Instruction — Charge Request of Defendant TLC The Laser Center (Northeast) Inc., 2005 WL 5544988Appellate Decision, Schiffer v. Speaker, 36 A.D.3d 520, 828 N.Y.S.2d 363 (1st Dept. 2007) (affirming Supreme Court decision finding clinic not vicariously liableTrial court decision — decision denying clinic's motion for summary judgment; granting plaintiff's motion for protective order regarding certain disclosures) Schiffer v. Speaker, 6 Misc.3d 1010(A), 800 N.Y.S.2d 356 (Table), 2004 WL 3115145 (N.Y.Sup. 2004)Trial court decision — order granting in part and denying in part defendants' motion to compel disclosure, Schiffer v. Speaker, 4 Misc.3d 1022(A), 798 N.Y.S.2d 348 (Table), 2004 WL 2059504 (N.Y.Sup. 2004)Trial Motion, Memorandum and Affidavit — Reply Affirmation, |
| Trial | 2005 WL 4679448Trial |
| Motion, Memorandum and Affidavit — Affirmation in Opposition, | Motion, Memorandum and Affidavit — Affirmation in Opposition, |
| Trial | 2005 WL 4679445Trial |
| Motion, Memorandum and Affidavit — Affirmation in Opposition, | Motion, Memorandum and Affidavit — Affirmation in Opposition, |
| Trial | 2005 WL 4679446Trial |
| Motion, Memorandum and Affidavit — Reply Memorandum of Law, | Motion, Memorandum and Affidavit — Reply Memorandum of Law, |
| Trial | 2005 WL 4679449Trial |
| Motion, Memorandum and Affidavit — Affirmation in Support of Motion for Judgment for Defendant or for a New Trial, | Motion, Memorandum and Affidavit — Affirmation in Support of Motion for Judgment for Defendant or for a New Trial, |
| Trial | 2005 WL 4679441Trial |
| Motion, Memorandum and Affidavit — Defendants' Memorandum of Law | Motion, Memorandum and Affidavit — Defendants' Memorandum of Law |
| Trial | 2005 WL 4679442Trial |
| Motion, Memorandum and Affidavit — Memorandum of Law of TLC Laser Eye Centers in Support of Motion for Directed Verdict, | Motion, Memorandum and Affidavit — Memorandum of Law of TLC Laser Eye Centers in Support of Motion for Directed Verdict, |
| Trial | 2005 WL 4679444Trial |
| Motion, Memorandum and Affidavit — Memorandum of Law, | Motion, Memorandum and Affidavit — Memorandum of Law, |
| Expert | 2005 WL 5908992Expert |
| Report and Affidavit — Physician Affirmation, 2005 WL 4844473Case and Verdict Summary, | Report and Affidavit — Physician Affirmation, 2005 WL 4844473Case and Verdict Summary, |
| 2. Sample | 2005 WL 5178452. Sample |
| Westlaw Query for Trial Court Documents in Similar Cases: Lasik & ophthalmologist & malpracticeD. Research References1.Key | Westlaw Query for Trial Court Documents in Similar Cases: Lasik & ophthalmologist & malpracticeD. Research References1.Key |
| Numbers , | NumbersHealth 670, 827Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Law of TortsOphthalmic Malpractice, 4 Am. Jur. Proof of Facts 3d 6894.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 3:334West's McKinney's Forms General Municipal Law § 50-d§ 5:17 Medical malpractice/ Dilation and evacuation surgery/two plaintiffs, four defendantsA. BackgroundType of Case: Medical malpractice/Dilation and evacuation surgery/ exploration and ligation of right internal iliac artery, and packing of the abdomen surgeryType of Damages: Pain and suffering, loss of servicesCase Name: Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D., Annie Frenkel, M.D., Long Island Jewish Medical Center and Mihai Rosca, M.D., Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Janice A. TaylorDocket Number: 66712011.Outcome: Verdict for defendants following a high-low agreement of $900,000/$200,000.Date of verdict: December 19, 2013Brief Summary of Allegations and Contentions: Plaintiffs, Michele Pagoto-Roche and Thomas Roche contended that Defendant Jalpa Shah, M.D.'s departures from good and accepted standards of medical practice were a substantial factor in causing Plaintiff's serious and permanent injuries and requiring her to undergo multiple corrective surgeries, specifically, in negligently opening the clamp outside of the uterine cavity, in failing to timely appreciate a perforation of the uterine wall; in failing to timely stop the procedure upon perforating the uterine wall; in failing to adequately dilate the cervix for the subject dilation and evacuation surgery; in negligently closing the clamp upon the internal iliac artery, internal iliac vein and right ureter, causing serious injury to those vessels and organs; and in negligently pulling the internal iliac artery, internal iliac vein and right ureter with the clamp, causing serious injury to those vessels and organs.Defendants Dr. Jalpa Shah and Long Island Medical Center contended that on the day of the subject surgery, Dr. Shah took the plaintiff to the operating room to perform the second trimester termination of pregnancy. The procedure was done under ultrasound guidance which is two-dimensional imaging in a three-dimensional space. Nicole Smizer, M.D., assisted Dr. Shah during the procedure by running the ultrasound equipment; however, even as to this aspect of the procedure, Dr. Shah assisted Dr. Smizer by positioning her hands with the transducer so that Dr. Shah would get the image she wanted on the ultrasound screen. At the outset of the procedure, Dr. Shah used a weighted speculum to give her access to the plaintiff's cervix. She then used an Allis clamp to mobilize or grip the cervix and a set of dilators to dilate the plaintiff's cervix to the maximum dilation. Thereafter, under ultrasound guidance, Dr. Shah made the first pass with the Sopher clamp. When she believed that she was near the fetus, she opened and closed the clamp but did not obtain any products of conception. Consistent with good practice, Dr. Shah withdrew the closed clamp to reset herself and made a second pass with the Sopher clamp. When she again believed via ultrasound imaging that she was by the fetus, she opened the clamp for a second time but then closed the clamp and withdrew it from the uterine cavity; at this point Dr. Shah advised her assistant Dr. Smizer and anesthesiologist Francis Macchio, M.D., that she believed there was uterine perforation and requested help. Help came quickly and treatment was appropriately provided by Anesthesiology, OB/GYN surgeons, and vascular surgeons, to effectively treat the complications which had developed and to stabilize the plaintiff. Dr. Shah and Long Island Jewish Medical Center contended that the complications which developed here, namely a uterine perforation and structural damage to the internal iliac artery, vein, and ureter, were all known risks of a second trimester abortion, and that these risks were known to increase in a patient like the plaintiff who had had multiple pregnancies, including one which required an operative delivery. The contention of Dr. Shah and Long Island Jewish Medical Center was that these known risks of the procedure materialized despite the fact that good and appropriate care was at all times rendered by Dr. Shah and the other physicians at Long Island Jewish Medical Center.B. Plaintiff's Proposed Jury | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Law of TortsOphthalmic Malpractice, 4 Am. Jur. Proof of Facts 3d 6894.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 3:334West's McKinney's Forms General Municipal Law § 50-d§ 5:17 Medical malpractice/ Dilation and evacuation surgery/two plaintiffs, four defendantsA. BackgroundType of Case: Medical malpractice/Dilation and evacuation surgery/ exploration and ligation of right internal iliac artery, and packing of the abdomen surgeryType of Damages: Pain and suffering, loss of servicesCase Name: Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D., Annie Frenkel, M.D., Long Island Jewish Medical Center and Mihai Rosca, M.D., Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Janice A. TaylorDocket Number: 66712011.Outcome: Verdict for defendants following a high-low agreement of $900,000/$200,000.Date of verdict: December 19, 2013Brief Summary of Allegations and Contentions: Plaintiffs, Michele Pagoto-Roche and Thomas Roche contended that Defendant Jalpa Shah, M.D.'s departures from good and accepted standards of medical practice were a substantial factor in causing Plaintiff's serious and permanent injuries and requiring her to undergo multiple corrective surgeries, specifically, in negligently opening the clamp outside of the uterine cavity, in failing to timely appreciate a perforation of the uterine wall; in failing to timely stop the procedure upon perforating the uterine wall; in failing to adequately dilate the cervix for the subject dilation and evacuation surgery; in negligently closing the clamp upon the internal iliac artery, internal iliac vein and right ureter, causing serious injury to those vessels and organs; and in negligently pulling the internal iliac artery, internal iliac vein and right ureter with the clamp, causing serious injury to those vessels and organs.Defendants Dr. Jalpa Shah and Long Island Medical Center contended that on the day of the subject surgery, Dr. Shah took the plaintiff to the operating room to perform the second trimester termination of pregnancy. The procedure was done under ultrasound guidance which is two-dimensional imaging in a three-dimensional space. Nicole Smizer, M.D., assisted Dr. Shah during the procedure by running the ultrasound equipment; however, even as to this aspect of the procedure, Dr. Shah assisted Dr. Smizer by positioning her hands with the transducer so that Dr. Shah would get the image she wanted on the ultrasound screen. At the outset of the procedure, Dr. Shah used a weighted speculum to give her access to the plaintiff's cervix. She then used an Allis clamp to mobilize or grip the cervix and a set of dilators to dilate the plaintiff's cervix to the maximum dilation. Thereafter, under ultrasound guidance, Dr. Shah made the first pass with the Sopher clamp. When she believed that she was near the fetus, she opened and closed the clamp but did not obtain any products of conception. Consistent with good practice, Dr. Shah withdrew the closed clamp to reset herself and made a second pass with the Sopher clamp. When she again believed via ultrasound imaging that she was by the fetus, she opened the clamp for a second time but then closed the clamp and withdrew it from the uterine cavity; at this point Dr. Shah advised her assistant Dr. Smizer and anesthesiologist Francis Macchio, M.D., that she believed there was uterine perforation and requested help. Help came quickly and treatment was appropriately provided by Anesthesiology, OB/GYN surgeons, and vascular surgeons, to effectively treat the complications which had developed and to stabilize the plaintiff. Dr. Shah and Long Island Jewish Medical Center contended that the complications which developed here, namely a uterine perforation and structural damage to the internal iliac artery, vein, and ureter, were all known risks of a second trimester abortion, and that these risks were known to increase in a patient like the plaintiff who had had multiple pregnancies, including one which required an operative delivery. The contention of Dr. Shah and Long Island Jewish Medical Center was that these known risks of the procedure materialized despite the fact that good and appropriate care was at all times rendered by Dr. Shah and the other physicians at Long Island Jewish Medical Center.B. Plaintiff's Proposed Jury |
| Instructions1. | Instructions1.PJI 1:21 |
| Review Principles | Review Principles |
| Stated2. | Stated2.PJI 1:22 |
| Falsus in | Falsus in |
| Uno3. | Uno3.PJI 1:23 |
| Burden of | Burden of |
| Proof4. | Proof4.PJI 1:24 |
| Return to | Return to |
| Courtroom5. | Courtroom5.PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. | Exhibits6.PJI 1:25A |
| Juror's Use of Professional | Juror's Use of Professional |
| Experience7. | Experience7.PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict8. | Verdict8.PJI 1:27 |
| Exclude | Exclude |
| Sympathy9. Conclusion10. | Sympathy9.PJI 1:28 Conclusion10.PJI 1:40 |
| Consider Only Competent | Consider Only Competent |
| Evidence11. | Evidence11.PJI 1:41 |
| Weighing | Weighing |
| Testimony12. | Testimony12.PJI 1:90 |
| General Instruction-Expert | General Instruction-Expert |
| Witness13. | Witness13.PJI 1:91 |
| General Instruction-Interested | General Instruction-Interested |
| Witness14. | Witness14.PJI 1:92 |
| General Instruction-Interested Witness-Employee of Party [modified only so as to add names of employees of defendant medical | General Instruction-Interested Witness-Employee of Party [modified only so as to add names of employees of defendant medical |
| center]15. | center]15.PJI 1:97 |
| General Instruction-Special | General Instruction-Special |
| Verdicts16..10 | Verdicts16.PJI 2.10 |
| Common Law Standard of Care-Negligence Defined | Common Law Standard of Care-Negligence Defined |
| Generally17. | Generally17.PJI 2:70 |
| Proximate Cause-In General18.Proposed “More probable than not” instruction: A physician's malpractice is a substantial factor in bringing about the injury if it is more probably than not that the injury resulted from the physician's negligence. (Candia v. Estepan, 289 A.D.2d 38 [1st Dept, 2001]; Vialva v. City of New York, 118 A.D.2d 701 [2d Dept., 1986]; Mertsaris v. Seventy-Third Corp, 105 A.D.2d 67 [2d Dept., 1984]). What constitutes more probable than not in this case does not depend upon specific mathematical calculation or certain percentage chance. The plaintiff needs only show that there was some diminution in the chance of a successful result in order to satisfy the more probable than not standard. (Calvin v. New York Medical Group, P.C., 286 A.D.2d 469 [2d Dept., 2001]; Jump v. Facelle, 275 A.D.2d 345 [2d Dept., | Proximate Cause-In General18.Proposed “More probable than not” instruction: A physician's malpractice is a substantial factor in bringing about the injury if it is more probably than not that the injury resulted from the physician's negligence. (Candia v. Estepan, 289 A.D.2d 38 [1st Dept, 2001]; Vialva v. City of New York, 118 A.D.2d 701 [2d Dept., 1986]; Mertsaris v. Seventy-Third Corp, 105 A.D.2d 67 [2d Dept., 1984]). What constitutes more probable than not in this case does not depend upon specific mathematical calculation or certain percentage chance. The plaintiff needs only show that there was some diminution in the chance of a successful result in order to satisfy the more probable than not standard. (Calvin v. New York Medical Group, P.C., 286 A.D.2d 469 [2d Dept., 2001]; Jump v. Facelle, 275 A.D.2d 345 [2d Dept., |
| 2000]).19. | 2000]).19.PJI 2:150 |
| Malpractice-Physician [modified]: A doctor who renders medical service to a patient is obligated to have that reasonable degree of knowledge and skill that is expected of an average specialist in the fields of Maternal Fetal Medicine and Obstetrics who perform Dilation and Evacuation surgeries in the medical community in which the doctor practices. The doctor must also comply with minimum national standards of care. [The error in judgment portion of the charge should be deleted because there is no judgment issue in this case.]20.Proposed “Specialists” Instruction: Specialists are bound to use the superior knowledge, skill and intelligence of practitioners in their field of specialty. Specialists are bound to comply with minimum standards applicable to specialists throughout the United States. (Riley v. Wieman, 137 A.D.2d 309 [3d Dept., 1988]). A doctor's deviation from the standards established by the medical profession in the specialty in which she practices constitutes medical malpractice. (Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255 | Malpractice-Physician [modified]: A doctor who renders medical service to a patient is obligated to have that reasonable degree of knowledge and skill that is expected of an average specialist in the fields of Maternal Fetal Medicine and Obstetrics who perform Dilation and Evacuation surgeries in the medical community in which the doctor practices. The doctor must also comply with minimum national standards of care. [The error in judgment portion of the charge should be deleted because there is no judgment issue in this case.]20.Proposed “Specialists” Instruction: Specialists are bound to use the superior knowledge, skill and intelligence of practitioners in their field of specialty. Specialists are bound to comply with minimum standards applicable to specialists throughout the United States. (Riley v. Wieman, 137 A.D.2d 309 [3d Dept., 1988]). A doctor's deviation from the standards established by the medical profession in the specialty in which she practices constitutes medical malpractice. (Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255 |
| [1968]).21. | [1968]).21.PJI 2:151A(2) |
| Negligence-Medical-Dental and Podiatric Malpractice-Damages-Itemized Verdict [The portion of the charge as to past and future medical expenses, past and future lost earnings, impairment of earning ability, custodial care and rehabilitation services should be deleted as those claims are not being made by plaintiffs in this | Negligence-Medical-Dental and Podiatric Malpractice-Damages-Itemized Verdict [The portion of the charge as to past and future medical expenses, past and future lost earnings, impairment of earning ability, custodial care and rehabilitation services should be deleted as those claims are not being made by plaintiffs in this |
| case.]22. | case.]22.PJI 2:235 |
| Vicarious or Derivative Responsibility-Employer-Employee-Scope of Employment [The second paragraph of the charge should be deleted because the Hospital has not claimed that their employee, Dr. Jalpa Shah, was acting outside of the scope of her | Vicarious or Derivative Responsibility-Employer-Employee-Scope of Employment [The second paragraph of the charge should be deleted because the Hospital has not claimed that their employee, Dr. Jalpa Shah, was acting outside of the scope of her |
| employment.]23. Damages-General24. | employment.]23.PJI 2:277 Damages-General24.PJI 2:280 |
| Damages-Personal Injury-Injury and Pain and | Damages-Personal Injury-Injury and Pain and |
| Suffering25. | Suffering25.PJI 2:280.1 |
| Loss of Enjoyment of | Loss of Enjoyment of |
| Life26. | Life26.PJI 2:281 |
| Damages-Personal Injury-Permanence-Life Expectancy | Damages-Personal Injury-Permanence-Life Expectancy |
| Tables27. | Tables27.PJI 2:283 |
| Damages-Personal Injury-Increased Susceptibility to | Damages-Personal Injury-Increased Susceptibility to |
| Injury28. | Injury28.PJI 2:284 |
| Damages-Personal Injury-Shock, Emotional Distress and Physical Consequences | Damages-Personal Injury-Shock, Emotional Distress and Physical Consequences |
| Thereof29. | Thereof29.PJI 2:315 |
| Damages-Derivative Action Re Spouse-Loss of ServicesC. Case Documents available on | Damages-Derivative Action Re Spouse-Loss of ServicesC. Case Documents available on |
| WestlawAmended | Westlaw•Amended |
| Complaint, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D., Annie Frenkel, M.D., Long Island Jewish Medical Center and Mihai Rosca, M.D., Defendants., 2011 WL 11575687 | Complaint, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D., Annie Frenkel, M.D., Long Island Jewish Medical Center and Mihai Rosca, M.D., Defendants., 2011 WL 11575687 |
| (N.Y.Sup.)Plaintiff's | (N.Y.Sup.)•Plaintiff's |
| Contentions, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D. and Long Island Jewish Medical Center, Defendants., 2011 WL 11575672 | Contentions, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D. and Long Island Jewish Medical Center, Defendants., 2011 WL 11575672 |
| (N.Y.Sup.)Defendants' | (N.Y.Sup.)•Defendants' |
| Contentions, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D., and Long Island Jewish Medical Center, Defendants., 2011 WL 11575673 | Contentions, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D., and Long Island Jewish Medical Center, Defendants., 2011 WL 11575673 |
| (N.Y.Sup.)Plaintiffs' | (N.Y.Sup.)•Plaintiffs' |
| Request to Charge, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D. and Long Island Jewish Medical Center, Defendants., 2014 WL 639816 | Request to Charge, Michele PAGOTO-ROCHE and Thomas Roche, Plaintiffs, v. Jalpa SHAH, M.D. and Long Island Jewish Medical Center, Defendants., 2014 WL 639816 |
| (N.Y.Sup.)Trial | (N.Y.Sup.)•Trial |
| Order, Pagoto-Roche v. Shah, 2014 WL 642030 (N.Y.Sup.)2. Sample Westlaw Query for Trial Court documents in Similar Cases: dilation /3 evacuation /p negligen! or malpracticeD. Research References1.Key | Order, Pagoto-Roche v. Shah, 2014 WL 642030 (N.Y.Sup.)2. Sample Westlaw Query for Trial Court documents in Similar Cases: dilation /3 evacuation /p negligen! or malpracticeD. Research References1.Key |
| Numbers | NumbersHealth 622 |
| to | to |
| , , | 627, 630, 684Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:168§ 5:18 Medical malpractice/Negligent insertion of feeding tubeA. BackgroundType of Case: Medical malpractice—negligent diagnosis and treatment of dysphagia; negligent insertion of feeding tube; wrongful deathType of Damages: Pain and suffering; loss of enjoyment of life; mental anguish, medical expensesCase Name: Alex St. LOUIS, Administrator of the Estate of Gerard St. Louis, Plaintiff, v. NORTH SHORE UNIVERSITY HOSPITAL-MANHASSET, Neeraj Kaushik, M.D., David Almeleh, M.D., Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Kevin J. KerriganDocket Number: 19667/11Outcome: Verdict for defendantsDate of verdict: April 10, 2014Brief Summary of Factual Allegations: Representative of decedent's estate sued defendant physicians and hospital for negligence in the assessment, diagnosis, treatment and monitoring of the decedentt's dysphagia, alleging specifically that the defendants negligently inserted a percutaneous endoscopic gastrostomy (PEG) feeding tube through the decedent's colon, thereby giving rise fo infection and sepsis and peritonitis. They further alleged that a reasonable prudent person in the decedent's position would not have undergone the surgery and treatments proposed and given had he been fully informed; that the defendant hospital was careless and negligent in its credentialing and hiring of the defendant physicians; and that the decedent's heirs and distributees suffered pecuniary damages as a result of his death. The claims for negligent hiring and lack of informed consent were dismissed on motion without opposition.B. Proposed Jury Instructions1.Jury instructions proposed by | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:168§ 5:18 Medical malpractice/Negligent insertion of feeding tubeA. BackgroundType of Case: Medical malpractice—negligent diagnosis and treatment of dysphagia; negligent insertion of feeding tube; wrongful deathType of Damages: Pain and suffering; loss of enjoyment of life; mental anguish, medical expensesCase Name: Alex St. LOUIS, Administrator of the Estate of Gerard St. Louis, Plaintiff, v. NORTH SHORE UNIVERSITY HOSPITAL-MANHASSET, Neeraj Kaushik, M.D., David Almeleh, M.D., Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Kevin J. KerriganDocket Number: 19667/11Outcome: Verdict for defendantsDate of verdict: April 10, 2014Brief Summary of Factual Allegations: Representative of decedent's estate sued defendant physicians and hospital for negligence in the assessment, diagnosis, treatment and monitoring of the decedentt's dysphagia, alleging specifically that the defendants negligently inserted a percutaneous endoscopic gastrostomy (PEG) feeding tube through the decedent's colon, thereby giving rise fo infection and sepsis and peritonitis. They further alleged that a reasonable prudent person in the decedent's position would not have undergone the surgery and treatments proposed and given had he been fully informed; that the defendant hospital was careless and negligent in its credentialing and hiring of the defendant physicians; and that the decedent's heirs and distributees suffered pecuniary damages as a result of his death. The claims for negligent hiring and lack of informed consent were dismissed on motion without opposition.B. Proposed Jury Instructions1.Jury instructions proposed by |
| plaintiff1. Introduction2. | plaintiff1.PJI 1:20 Introduction2.PJI 1:21 |
| Review Principles | Review Principles |
| Stated3. | Stated3.PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4.PJI 1:23 |
| Burden of | Burden of |
| Proof5. | Proof5.PJI 1:24 |
| Return to | Return to |
| Courtroom6. | Courtroom6.PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. | Exhibits7.PJI 1:26 |
| Five-sixths | Five-sixths |
| Verdict8. Conclusion9. | Verdict8.PJI 1:28 Conclusion9.PJI 1:39 |
| No Inference from | No Inference from |
| Rulings10. | Rulings10.PJI 1:40 |
| Consider Only Competent | Consider Only Competent |
| Evidence11. | Evidence11.PJI 1:41 |
| Weighing | Weighing |
| Testimony12. | Testimony12.PJI 1:70 |
| Circumstantial | Circumstantial |
| Evidence13. | Evidence13.PJI 1:90 |
| General Information—Expert | General Information—Expert |
| Witness14. | Witness14.PJI 1:91 |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally15. | Witness—Generally15.PJI 2:149 |
| Continuous | Continuous |
| Treatment16. | Treatment16.PJI 2:150 |
| Medical | Medical |
| Malpractice—Physician17. | Malpractice—Physician17.PJI 2:151 |
| Medical Malpractice | Medical Malpractice |
| Hospital18. Negligence19. | Hospital18.PJI 2:10 Negligence19.PJI 2:235 |
| Vicarious Responsibility—Employer-Employee—Scope of | Vicarious Responsibility—Employer-Employee—Scope of |
| Employment20. | Employment20.PJI 2:70 |
| Substantial Factor: [modified so as to include language]: “Since there can more than one cause of an injury, to recover, plaintiffs have to establish only that an act or omission of a defendant was ‘a’ cause, not, ‘the’ cause of harm or injury to the plaintiff. The defendant's negligent act or negligent omission to act need not be the sole cause but need only be ‘a’ cause of injury to the plaintiff in order for that defendant to be held liable.” See Comment | Substantial Factor: [modified so as to include language]: “Since there can more than one cause of an injury, to recover, plaintiffs have to establish only that an act or omission of a defendant was ‘a’ cause, not, ‘the’ cause of harm or injury to the plaintiff. The defendant's negligent act or negligent omission to act need not be the sole cause but need only be ‘a’ cause of injury to the plaintiff in order for that defendant to be held liable.” See Comment |
| PJI 2:70 |
| (3d Ed. 2005) v. 1A, p.357; see also Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (1999); Fox v. Tedesco, 15 A.D.3d 538 (2d Dept. 2005); Galioto v. Lakeside Hospital, 123 A.D.2d 421, 422 (2d Dept 1986); Capicchioni v. Morrissey, 205 A.D.2d 959 (3d Dept. 1994) (Finding that “care should be taken to use the phrases ‘a cause’ and ‘a substantial factor’ and to avoid the use of the phrases ‘the cause’ and ‘that cause’ in order to prevent the erroneous implication that there can only be one proximate | (3d Ed. 2005) v. 1A, p.357; see also Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (1999); Fox v. Tedesco, 15 A.D.3d 538 (2d Dept. 2005); Galioto v. Lakeside Hospital, 123 A.D.2d 421, 422 (2d Dept 1986); Capicchioni v. Morrissey, 205 A.D.2d 959 (3d Dept. 1994) (Finding that “care should be taken to use the phrases ‘a cause’ and ‘a substantial factor’ and to avoid the use of the phrases ‘the cause’ and ‘that cause’ in order to prevent the erroneous implication that there can only be one proximate |
| cause.”)21. | cause.”)21.PJI 1:70 |
| Reasonable Inference and Substantial | Reasonable Inference and Substantial |
| Factor22. | Factor22.PJI 2:280 |
| Damages—Pain and Suffering2.Jury instructions proposed by | Damages—Pain and Suffering2.Jury instructions proposed by |
| defendants1. | defendants1. PJI 1:21 |
| Review Principles | Review Principles |
| Stated2. | Stated2. PJI 1:22 |
| Falsus in | Falsus in |
| Uno3. | Uno3. PJI 1:23 |
| Burden of | Burden of |
| Proof4. | Proof4. PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits5. | Exhibits5. PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict6. | Verdict6. PJI 1:27 |
| Exclude | Exclude |
| Sympathy7. | Sympathy7. PJI 1:90 |
| General Instruction—Expert Witness, including Dr. Kaushik, Dr. Almeleh, Dr. Jaffin and Dr. | General Instruction—Expert Witness, including Dr. Kaushik, Dr. Almeleh, Dr. Jaffin and Dr. |
| Rubach8. | Rubach8. PJI 1:91 |
| General Instruction—Interested | General Instruction—Interested |
| Witness9. | Witness9. PJI 1:97 |
| Special | Special |
| Verdict10. | Verdict10. PJI 2:70 |
| Proximate | Proximate |
| Cause11. | Cause11. PJI 2:150 |
| Malpractice—Physician with judgment | Malpractice—Physician with judgment |
| charge12. Damages—General13. :2777A | charge12. PJI 2:277 Damages—General13. PJI 2:2777A |
| Damages—Comment by Counsel During Closing | Damages—Comment by Counsel During Closing |
| Remarks14. | Remarks14. PJI 2:280 |
| Damages—Conscious Pain and SufferingC. Documents available on WestlawNext1. Documents related to this caseComplaint, | Damages—Conscious Pain and SufferingC. Documents available on WestlawNext1. Documents related to this caseComplaint, |
| Reply | 2011 WL 11745461Reply |
| Affidavit, | Affidavit, |
| Affirmation | 2013 WL 8539279Affirmation |
| in Opposition, | in Opposition, |
| Affidavit | 2013 WL 8539277Affidavit |
| in Support of Summary Judgment Motion, | in Support of Summary Judgment Motion, |
| Memorandum | 2013 WL 8539276Memorandum |
| of Law, | of Law, |
| Request | 2011 WL 1174563Request |
| to Charge, | to Charge, |
| Memorandum | 2014 WL 2207463Memorandum |
| of Law, | of Law, |
| Plaintiff's | 2014 WL 2207464Plaintiff's |
| Request to Charge, | Request to Charge, |
| Affirmation | 2014 WL 2207460Affirmation |
| of Barry W. Jaffin, | of Barry W. Jaffin, |
| Order | M.D., 2013 WL 8609085Order |
| denying defendants' mottion for summary judgment as to malpractice claims and granting summary judgment as to claims for lack of informed consent and negligent hiring, | denying defendants' mottion for summary judgment as to malpractice claims and granting summary judgment as to claims for lack of informed consent and negligent hiring, |
| Verdict | 2013 WL 8540851Verdict |
| Sheet, 2014 WL 2207504.2. Sample WestlawNext Query for Trial Court documents in similar cases: “percutaneous endoscopic gastrostomy” and malpracticeD. Research References1.Key NumbersHealth 634, 637, 665, 8272.Westlaw Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents - Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series-Evidence in New York State and Federal CourtsNew York Practice Series-New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 6:174, | Sheet, 2014 WL 2207504.2. Sample WestlawNext Query for Trial Court documents in similar cases: “percutaneous endoscopic gastrostomy” and malpracticeD. Research References1.Key NumbersHealth 634, 637, 665, 8272.Westlaw Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents - Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series-Evidence in New York State and Federal CourtsNew York Practice Series-New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 6:174, |
| , , , , , § 5:19 Medical | 6:261, 7:7, 7:8, 7:63, 7:193, 10:211§ 5:19 Medical |
| malpactice/Orthopedic surgery/ruptured biceps tendon/delay compounded by negligent surgeryA. BackgroundType of Case: Medical malpractice; orthopedic surgery (distal biceps tendon); unreasonable delay while awaiting insurance approvalType of Damages: Pain and suffering; loss of enjoyment of life; loss of spousal servicesCase Name: Tyrone STRIDER and Flyura Strider, Plaintiffs, v. Claudette M. LAJAM, M.D., Mehran Manouel, M.D., and Able Orthopedics & Sports Medicine, P.C, Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Darrell L. GavrinDocket Number: 7740/09Outcome: Verdict for plaintiff for $600,000 past pain and suffering; $1,200,000 future pain and suffering (20 years); $350,000 to spouse for past loss of services and society; $150,000 to spouse fot future loss of services and society (20 years).Date of verdict: April 23, 2014Brief Summary of Factual Allegations: It was alleged that the plaintiff was lifting himself onto a truck at work when he felt a pop and pain in his right arm. His injury was diagnosed in a hospital emergency room as a ruptured right biceps tendon and he was referred to the defendant practice and physician for treatment and evaluation the next day. The surgery was allegedly deleyed, in violation of accepted norms, while the practice awaited insurance company approval of the contemplated surgery. As a result of the delay, the surgery allegedly became more difficult and problematic and was negligently performed in part because a suture was put in close proximity to the posterior interosseous nerve (PIN). Repair surgery was allegedly not performed until 18 days after the injury.B. Proposed Jury Instructions1.Jury instructions proposed by | malpactice/Orthopedic surgery/ruptured biceps tendon/delay compounded by negligent surgeryA. BackgroundType of Case: Medical malpractice; orthopedic surgery (distal biceps tendon); unreasonable delay while awaiting insurance approvalType of Damages: Pain and suffering; loss of enjoyment of life; loss of spousal servicesCase Name: Tyrone STRIDER and Flyura Strider, Plaintiffs, v. Claudette M. LAJAM, M.D., Mehran Manouel, M.D., and Able Orthopedics & Sports Medicine, P.C, Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Darrell L. GavrinDocket Number: 7740/09Outcome: Verdict for plaintiff for $600,000 past pain and suffering; $1,200,000 future pain and suffering (20 years); $350,000 to spouse for past loss of services and society; $150,000 to spouse fot future loss of services and society (20 years).Date of verdict: April 23, 2014Brief Summary of Factual Allegations: It was alleged that the plaintiff was lifting himself onto a truck at work when he felt a pop and pain in his right arm. His injury was diagnosed in a hospital emergency room as a ruptured right biceps tendon and he was referred to the defendant practice and physician for treatment and evaluation the next day. The surgery was allegedly deleyed, in violation of accepted norms, while the practice awaited insurance company approval of the contemplated surgery. As a result of the delay, the surgery allegedly became more difficult and problematic and was negligently performed in part because a suture was put in close proximity to the posterior interosseous nerve (PIN). Repair surgery was allegedly not performed until 18 days after the injury.B. Proposed Jury Instructions1.Jury instructions proposed by |
| plaintiff1. Introduction2. | plaintiff1.PJI 1:20 Introduction2.PJI 1:21 |
| Review Principles | Review Principles |
| Stated3. | Stated3.PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4.PJI 1:24 |
| Return to | Return to |
| Courtroom5. | Courtroom5.PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. | Exhibits6.PJI 1:26 |
| Five-sixths | Five-sixths |
| Verdict7. | Verdict7.PJI 1:27 |
| Exclude | Exclude |
| Sympathy8. Conclusion9. | Sympathy8.PJI 1:28 Conclusion9.PJI 1:29 |
| Alternate Jurors10.PJI J:60 Burden of | Alternate Jurors10.PJI J:60 Burden of |
| Proof11. | Proof11.PJI 1:70 |
| Circumstantial | Circumstantial |
| Evidence12. | Evidence12.PJI 1:90 |
| General Instruction—Expert | General Instruction—Expert |
| Witness13. | Witness13.PJI 1:90.2 |
| Expert Witness—Authoritative Articles or | Expert Witness—Authoritative Articles or |
| Treatises14. | Treatises14.PJI 1:91 |
| General Instruction—Interested | General Instruction—Interested |
| Witness15. | Witness15.PJI 1:97 |
| General Instruction—Special | General Instruction—Special |
| Verdicts16. | Verdicts16.PJI 2:10 |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined17. | Defined17.PJI 2:150 |
| Malpractice—Physician (excluding &5 (judgment) and (&7) | Malpractice—Physician (excluding &5 (judgment) and (&7) |
| (payment)18.;70 | (payment)18.PJI 2;70 |
| Proximate Cause—In | Proximate Cause—In |
| General19. | General19.PJI 2:235 |
| Vicarious or Derivative Responsibility—Employer-Employee—Scope of | Vicarious or Derivative Responsibility—Employer-Employee—Scope of |
| Employment20. Damages—General21. | Employment20.PJI 2:277 Damages—General21.PJI 2:280 |
| Injury and Pain and Suffering—Damages—Personal | Injury and Pain and Suffering—Damages—Personal |
| Injury22. | Injury22.PJI 2:280.1 |
| Injury and Pain and Suffering—Damages—Personal Injury | Injury and Pain and Suffering—Damages—Personal Injury |
| (Supplemental)23. | (Supplemental)23.PJI 2:280.2 |
| Injury and Pain and Suffering—Damages—Personal Injury | Injury and Pain and Suffering—Damages—Personal Injury |
| (Supplemental)24. | (Supplemental)24.PJI 2:281 |
| Permanence—Life Expectancy Tables—Damages | Permanence—Life Expectancy Tables—Damages |
| (25.8)25. | (25.8)25.PJI 2:284 |
| Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences | Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences |
| Thereof26. | Thereof26.PJI 2:285 |
| Damages—Personal Injury—Expenses | Damages—Personal Injury—Expenses |
| Incurred27. | Incurred27.PJI 2:290 |
| Damages—Personal Injury—Loss of Earnings—In | Damages—Personal Injury—Loss of Earnings—In |
| General28. | General28.PJI 2:315 |
| Damages—Derivative Action Re Spouse—Loss of | Damages—Derivative Action Re Spouse—Loss of |
| Services29. | Services29.PJI 2:151 |
| A(2) Malpractice Damages—Itemized Verdict2.Jury instructions proposed by | A(2) Malpractice Damages—Itemized Verdict2.Jury instructions proposed by |
| defendants1. Introduction2. | defendants1.PJI 1:20 Introduction2.PJI 1:21 |
| Review of Principles of Weighing | Review of Principles of Weighing |
| Evidence3. | Evidence3.PJI 1:22 |
| Falsus In | Falsus In |
| Uno4. | Uno4.PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits5. | Exhibits5.PJI. 1:24 |
| Return to | Return to |
| Courtroom6. | Courtroom6.PJI 1:23 |
| Burden of | Burden of |
| Proof7. | Proof7.PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict8..90 | Verdict8.PJI 1.90 |
| Expert | Expert |
| Witnesses9. | Witnesses9.PJI 1:91 |
| Interested | Interested |
| Witnesses10. | Witnesses10.PJI 1:27 |
| Exclude | Exclude |
| Sympathy11. | Sympathy11.PJI 1:29 |
| Alternate | Alternate |
| Jurors12. | Jurors12.PJI 2:10 |
| Negligence | Negligence |
| Defined13. | Defined13.PJI 2:150 |
| Malpractice—Physician [modified]: We respectfully request that the charge include the optional language regarding the exercise of | Malpractice—Physician [modified]: We respectfully request that the charge include the optional language regarding the exercise of |
| judgment.14. | judgment.14.PJI 2:70 |
| Proximate Cause, in | Proximate Cause, in |
| General15. Damages—General16. | General15.PJI 2:277 Damages—General16.PJI 2:277A |
| Damages—Comment by Counsel During Closing | Damages—Comment by Counsel During Closing |
| Remarks17. | Remarks17.PJI 2:280 |
| Pain and | Pain and |
| Suffering18. | Suffering18.PJI 1:97 |
| Special | Special |
| Verdict19. | Verdict19.PJI 1:28 |
| ConclusionC. Case Documents available on Westlaw1.Documents Pertaining to this CaseAffirmation in Support of practice defendants' motion for summary judgment, | ConclusionC. Case Documents available on Westlaw1.Documents Pertaining to this CaseAffirmation in Support of practice defendants' motion for summary judgment, |
| Attorney | 2013 WL 8539818Attorney |
| Affirmation in support of defendant Lajam's motion for summary judgment, | Affirmation in support of defendant Lajam's motion for summary judgment, |
| Affirmation | 2013 WL 8539820Affirmation |
| in Opposition to defendants' motion for summary judgment, | in Opposition to defendants' motion for summary judgment, |
| Reply | 2013 WL 8539819Reply |
| Affirmation in support of defendants' motion for summary judgment, | Affirmation in support of defendants' motion for summary judgment, |
| Order | 2013 WL 8539840Order |
| denying defendants' motion for summary judgment, | denying defendants' motion for summary judgment, |
| Plaintiff's | 2013 WL 8540855Plaintiff's |
| Requests to Charge and Proposed Jury Interrogatories, | Requests to Charge and Proposed Jury Interrogatories, |
| Defendant's | 2014 WL 2216301Defendant's |
| Porposed Jury Questions, 2014 WL 2216311Verdict Sheet, | Porposed Jury Questions, 2014 WL 2216311Verdict Sheet, |
| 2.Sample | 2014 WL 22275422.Sample |
| WestlawNext Query for Trial Court documents in similar cases: malpractice and delay and treatmentD. Research References1.Key | WestlawNext Query for Trial Court documents in similar cases: malpractice and delay and treatmentD. Research References1.Key |
| Numbers , , 2.Westlaw | NumbersHealth 665, 674, 8272.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:7, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:7, |
| , § 5:20 Medical | 7:8, 7:63§ 5:20 Medical |
| malpractice/angioplasty; X-ray radiation exposure; one plaintiff, multiple defendantsA. BackgroundType of Case: Medical malpractice; surgical; angioplasty; radiation exposureType of Injury/Damages: Radiation burn; physical and emotional injury, pain and sufferingCase Name: Paul CHEMIDLIN, v. Frank M. IACOVONE, Jr., M.D., et al.Court: New York State Supreme Court, New York CountyJudge: Hon. Eileen A. RakowerDocket Number: 8001962011Outcome: Verdict for defendantsDate of verdict: March 20, 2015Brief Summary of Factual Allegations: Plaintiff underwent interventional cardiology procedures, including, without limitation, a percutaneous transluminal coronary angioplasty (“PTCA”) of the proximal left circumflex artery (“LCX”), performed by defendant physicians acting within the scope of their employment, using the Interventional X-ray System in a catheterization lab at the facility owned and specifically marketed and provided by a defendant. While performing the PTCA of the LCX, the defendant physicians caused a dissection of plaintiff's proximal LCX; plaintiff received a major dose of fluoroscopic radiation exposure incident thereto. Two days later, plaintiff underwent additional interventional cardiology procedures, including without limitation, retrieval using a snare of an undeployed stent in plaintiffs LCX, crushing another undeployed stent in the LCX against the wall of the vessel and continuing the PTCA of the LCX, performed by two defendant physicians using the Interventional X-ray System in a catheterization lab at the facility owned and specifically marketed and provided by a defendant. Plaintiff received another major dose of fluoroscopic radiation exposure incident thereto. Plaintiff incurred and developed a severe radiation burn, damaging the skin and muscle tissue of his back.B. Plaintiff's Preliminary Request to ChargePlaintiff requested the following charges: (all references are to the 2014 PJI 3rd | malpractice/angioplasty; X-ray radiation exposure; one plaintiff, multiple defendantsA. BackgroundType of Case: Medical malpractice; surgical; angioplasty; radiation exposureType of Injury/Damages: Radiation burn; physical and emotional injury, pain and sufferingCase Name: Paul CHEMIDLIN, v. Frank M. IACOVONE, Jr., M.D., et al.Court: New York State Supreme Court, New York CountyJudge: Hon. Eileen A. RakowerDocket Number: 8001962011Outcome: Verdict for defendantsDate of verdict: March 20, 2015Brief Summary of Factual Allegations: Plaintiff underwent interventional cardiology procedures, including, without limitation, a percutaneous transluminal coronary angioplasty (“PTCA”) of the proximal left circumflex artery (“LCX”), performed by defendant physicians acting within the scope of their employment, using the Interventional X-ray System in a catheterization lab at the facility owned and specifically marketed and provided by a defendant. While performing the PTCA of the LCX, the defendant physicians caused a dissection of plaintiff's proximal LCX; plaintiff received a major dose of fluoroscopic radiation exposure incident thereto. Two days later, plaintiff underwent additional interventional cardiology procedures, including without limitation, retrieval using a snare of an undeployed stent in plaintiffs LCX, crushing another undeployed stent in the LCX against the wall of the vessel and continuing the PTCA of the LCX, performed by two defendant physicians using the Interventional X-ray System in a catheterization lab at the facility owned and specifically marketed and provided by a defendant. Plaintiff received another major dose of fluoroscopic radiation exposure incident thereto. Plaintiff incurred and developed a severe radiation burn, damaging the skin and muscle tissue of his back.B. Plaintiff's Preliminary Request to ChargePlaintiff requested the following charges: (all references are to the 2014 PJI 3rd |
| Ed.)1. | Ed.)1.PJI 1:20 |
| — | — |
| Introduction2. | Introduction2.PJI 1:21 |
| — Review Principles | — Review Principles |
| Stated3. | Stated3.PJI 1:22 |
| — Falsus in | — Falsus in |
| Uno4. | Uno4.PJI 1:24 |
| — Return to | — Return to |
| Courtroom5. | Courtroom5.PJI 1:25 |
| — Consider Only Testimony and | — Consider Only Testimony and |
| Exhibits6. | Exhibits6.PJI 1:26 |
| — Five-Sixth | — Five-Sixth |
| Verdict7. | Verdict7.PJI 1:27 |
| — Exclude | — Exclude |
| Sympathy8. | Sympathy8.PJI 1:41 |
| — Weighing | — Weighing |
| Testimony9. | Testimony9.PJI 1:42 |
| — Expert | — Expert |
| Witnesses10. | Witnesses10.PJI 1:60 |
| — General Instruction — Burden of Proof — When Burden Differs on Different Issues In addition to the pattern charge, plaintiff respectfully requests that the Court charge that the jury can liken the burden of proof to the scales of justice and that if the evidence in support of the plaintiffs claims when weighed against the proof opposed to it tips the scale, no matter how slightly in plaintiff's favor, then the plaintiff has met his burden of | — General Instruction — Burden of Proof — When Burden Differs on Different Issues In addition to the pattern charge, plaintiff respectfully requests that the Court charge that the jury can liken the burden of proof to the scales of justice and that if the evidence in support of the plaintiffs claims when weighed against the proof opposed to it tips the scale, no matter how slightly in plaintiff's favor, then the plaintiff has met his burden of |
| proof.11. | proof.11.PJI 1:70 |
| — Circumstantial | — Circumstantial |
| Evidence12. | Evidence12.PJI 1:90 |
| — Expert | — Expert |
| Witnesses13. | Witnesses13.PJI 1:91 |
| — Interested | — Interested |
| Witnesses14. | Witnesses14.PJI 1:97 |
| — Special | — Special |
| Verdicts15. | Verdicts15.PJI 2:10 |
| — Negligence Negligence is lack of ordinary care. It is a failure to exercise that degree of care which a reasonably prudent person would have exercised under the same circumstances. It may arise from doing an act which a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act which a reasonably prudent person would have done under the same circumstances. Caldwell v Island Park, 304 N.Y. 268, 107 N.E.2d 441; Sadowski v Long Island R.R. Co., 292 N.Y. 448, 55 N.E.2d 497; New York PJI 2:10, Main Volume | — Negligence Negligence is lack of ordinary care. It is a failure to exercise that degree of care which a reasonably prudent person would have exercised under the same circumstances. It may arise from doing an act which a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act which a reasonably prudent person would have done under the same circumstances. Caldwell v Island Park, 304 N.Y. 268, 107 N.E.2d 441; Sadowski v Long Island R.R. Co., 292 N.Y. 448, 55 N.E.2d 497; New York PJI 2:10, Main Volume |
| (1).16. | (1).16.PJI 2:150 |
| — Cumulative Supp. Malpractice (modified): Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances; doing something which a reasonably prudent doctor would not do under the circumstances or failing to do something which a reasonably prudent doctor would do under the circumstances; it is a deviation or departure from accepted practice. Pike v Honsinger, 155 N.Y. 201, 209, 49 N.E. 760; Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368; New York PJI 2:150: Cumulative Supp. A doctor who renders medical service to a patient is obligated to have that reasonable degree of knowledge and ability which is expected of doctors who provide that medical service and/or treatment in the medical community in which the doctor practices. Pike v Honsinger, 155 N.Y. 201, 209, 49 N.E. 760; Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368; New York PJI 2:150: Cumulative Supp. If the doctor is negligent, that is, lacks the skill or knowledge required of him in providing a medical service or fails to use reasonable care in providing the service, and such lack of skill or care or knowledge or the failure to use reasonable care is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused. Pike v Honsinger, 155 N.Y. 201, 209, 49 N.E. 760; Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440,239 N.E.2d 368; New York PJI 2:150: Cumulative Supp. An “error of judgment” is appropriate only in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises his judgment by following one course of action in lieu of another. Spadaccini v Dolan, 63 A.D.2d 110, 407 N.Y.S.2d 840, 846; New York PJI 2:150: Cumulative Supp. Taking no action or not considering alternatives is not an error of judgment. It is respectfully requested that “error in judgment” should not be charged as it is inapplicable to this case, Nestorowich v Ricotta- 97 N.Y.2d 393, 740 N.Y.S.2d 668, 767 N.E.2d 125; Martin v Lattimore Road Surgicenter. Inc., 281 A.D.2d 866, 727 N.Y.S.2d 836.Author's Note: The “error in judgment” portion of | — Cumulative Supp. Malpractice (modified): Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances; doing something which a reasonably prudent doctor would not do under the circumstances or failing to do something which a reasonably prudent doctor would do under the circumstances; it is a deviation or departure from accepted practice. Pike v Honsinger, 155 N.Y. 201, 209, 49 N.E. 760; Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368; New York PJI 2:150: Cumulative Supp. A doctor who renders medical service to a patient is obligated to have that reasonable degree of knowledge and ability which is expected of doctors who provide that medical service and/or treatment in the medical community in which the doctor practices. Pike v Honsinger, 155 N.Y. 201, 209, 49 N.E. 760; Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368; New York PJI 2:150: Cumulative Supp. If the doctor is negligent, that is, lacks the skill or knowledge required of him in providing a medical service or fails to use reasonable care in providing the service, and such lack of skill or care or knowledge or the failure to use reasonable care is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused. Pike v Honsinger, 155 N.Y. 201, 209, 49 N.E. 760; Toth v Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440,239 N.E.2d 368; New York PJI 2:150: Cumulative Supp. An “error of judgment” is appropriate only in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises his judgment by following one course of action in lieu of another. Spadaccini v Dolan, 63 A.D.2d 110, 407 N.Y.S.2d 840, 846; New York PJI 2:150: Cumulative Supp. Taking no action or not considering alternatives is not an error of judgment. It is respectfully requested that “error in judgment” should not be charged as it is inapplicable to this case, Nestorowich v Ricotta- 97 N.Y.2d 393, 740 N.Y.S.2d 668, 767 N.E.2d 125; Martin v Lattimore Road Surgicenter. Inc., 281 A.D.2d 866, 727 N.Y.S.2d 836.Author's Note: The “error in judgment” portion of |
| , | PJI 2:150, |
| by its own terms, “should only be charged when there is evidence that the doctor made a choice among medically acceptable alternatives.”“This limited application of the error in judgment charge preserves the established standard of care. Broader application of the charge would transform it from a protection against second-guessing of genuine exercises of professional judgment in treatment or diagnosis into a cloak for professional misfeasance. The doctrine was intended to protect those medical professionals who, in exercising due care, choose from two or more responsible and medically acceptable approaches. A distinction must therefore be made between an “error in judgment” and a doctor's failure to exercise his or her best judgment. Giving the “error in judgment” charge without regard for this distinction would otherwise relieve doctors whose conduct would constitute a breach of duty from liability.” Nestorowich v Ricotta, 97 NY2d 393, 399–400 | by its own terms, “should only be charged when there is evidence that the doctor made a choice among medically acceptable alternatives.”“This limited application of the error in judgment charge preserves the established standard of care. Broader application of the charge would transform it from a protection against second-guessing of genuine exercises of professional judgment in treatment or diagnosis into a cloak for professional misfeasance. The doctrine was intended to protect those medical professionals who, in exercising due care, choose from two or more responsible and medically acceptable approaches. A distinction must therefore be made between an “error in judgment” and a doctor's failure to exercise his or her best judgment. Giving the “error in judgment” charge without regard for this distinction would otherwise relieve doctors whose conduct would constitute a breach of duty from liability.” Nestorowich v Ricotta, 97 NY2d 393, 399–400 |
| [2002].17. | [2002].17. PJI 2:150A |
| — Malpractice — Informed | — Malpractice — Informed |
| Consent18. | Consent18. PJI 2:70 |
| — Proximate Cause — In General (modified): An act or omission is regarded as a cause of an injury only if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. New York PJI 2:70: Cumulative Supp. [Using the phrase “the cause” is reversible error under New York law, Capicchioni v Morrissey, A.D.2d, 613 N.Y.S.2d 499]. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it. New York PJI 2:70. Plaintiff need not make a showing with absolute certitude nor exclude every other possible cause of injury. Derdiarian v Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E. 666. The plaintiff must show that a defendant's negligence was a “substantial factor” in bringing about the injury. Stewart v New York City Health and Hospitals Corporation, A.D.2d, 616 N.Y.S.2d 499, 500; see also, Kallenberg v Beth Israel Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508, | — Proximate Cause — In General (modified): An act or omission is regarded as a cause of an injury only if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. New York PJI 2:70: Cumulative Supp. [Using the phrase “the cause” is reversible error under New York law, Capicchioni v Morrissey, A.D.2d, 613 N.Y.S.2d 499]. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it. New York PJI 2:70. Plaintiff need not make a showing with absolute certitude nor exclude every other possible cause of injury. Derdiarian v Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E. 666. The plaintiff must show that a defendant's negligence was a “substantial factor” in bringing about the injury. Stewart v New York City Health and Hospitals Corporation, A.D.2d, 616 N.Y.S.2d 499, 500; see also, Kallenberg v Beth Israel Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508, |
| , | aff'd, |
| 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128. The issue of proximate cause is not necessarily whether the plaintiff could have led a “normal life” as a result of defendant's negligence or malpractice. Rather, the question is whether the plaintiff suffered a legally cognizable injury proximately caused by a defendant's acts or failure to act. Recovery is not predicated upon a plaintiffs underlying capacity for a “normal life.” Abreu v Ferrer, 198 A.D.2d 150, 603 N.Y.S.2d 485. The chance a successful outcome plaintiff was caused to lose due to negligence or malpractice does not have to be more than 50% (more probable than not), but it must be more than slight. If a jury determines that a 5 to 10 percent chance of success was “substantial,” a verdict in plaintiffs favor is justified. The plaintiff must show that a defendant's negligence was a “substantial factor” in bringing about the injury. Stewart v New York City Health and Hospitals Corporation, —A.D.2d—, 616 N.Y.S.2d 499, 500; see also, Kallenberg v Beth Israel Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508, | 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128. The issue of proximate cause is not necessarily whether the plaintiff could have led a “normal life” as a result of defendant's negligence or malpractice. Rather, the question is whether the plaintiff suffered a legally cognizable injury proximately caused by a defendant's acts or failure to act. Recovery is not predicated upon a plaintiffs underlying capacity for a “normal life.” Abreu v Ferrer, 198 A.D.2d 150, 603 N.Y.S.2d 485. The chance a successful outcome plaintiff was caused to lose due to negligence or malpractice does not have to be more than 50% (more probable than not), but it must be more than slight. If a jury determines that a 5 to 10 percent chance of success was “substantial,” a verdict in plaintiffs favor is justified. The plaintiff must show that a defendant's negligence was a “substantial factor” in bringing about the injury. Stewart v New York City Health and Hospitals Corporation, —A.D.2d—, 616 N.Y.S.2d 499, 500; see also, Kallenberg v Beth Israel Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508, |
| , . The | aff'd, 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128. The |
| defendant takes his patient as he finds him and if defendant's negligence in the care and treatment of the plaintiff produced a greater affliction than in some other case because of some pre-existing bodily infirmities, the defendant is nevertheless responsible for the end result (Poplar v. Bourjois, 298 N.Y. 62,67,68; Dunham v. Village of Canisteo, 303 N.Y. 489 at 505).If plaintiff prevails on the issue of liability there must include an award of money for the injury it is found that plaintiff suffered and for conscious pain and suffering caused by | defendant takes his patient as he finds him and if defendant's negligence in the care and treatment of the plaintiff produced a greater affliction than in some other case because of some pre-existing bodily infirmities, the defendant is nevertheless responsible for the end result (Poplar v. Bourjois, 298 N.Y. 62,67,68; Dunham v. Village of Canisteo, 303 N.Y. 489 at 505).If plaintiff prevails on the issue of liability there must include an award of money for the injury it is found that plaintiff suffered and for conscious pain and suffering caused by |
| defendant.19. | defendant.19. PJI 2:277 |
| — | — |
| Damages20. | Damages20. PJI 2:280 |
| — Injury and Pain & | — Injury and Pain & |
| Suffering21. | Suffering21. PJI 2:280.1 |
| — Loss of enjoyment of | — Loss of enjoyment of |
| Life22. | Life22. PJI 2:281 |
| — | — |
| Permanency23. | Permanency23. PJI 2:284 |
| — Emotional | — Emotional |
| Distress24. | Distress24. PJI 2:285 |
| — Expenses IncurredC. Case Documents available on | — Expenses IncurredC. Case Documents available on |
| Westlaw | Westlaw2011 WL 12716197 (N.Y.Sup.) |
| (Trial Pleading), Verified | (Trial Pleading), Verified |
| Complaint, | Complaint,2015 WL 2341474 (N.Y.Sup.) |
| (Jury Instruction), Plaintiffs' Preliminary Requests to | (Jury Instruction), Plaintiffs' Preliminary Requests to |
| Charge, | Charge2015 WL 2256312 (N.Y.Sup.), |
| Verdict SheetSample Westlaw Query for Trial Court documents in Similar Cases: angioplasty and radiationD. Research References1.Key | Verdict SheetSample Westlaw Query for Trial Court documents in Similar Cases: angioplasty and radiationD. Research References1.Key |
| Numbers , , 2.Westlaw | NumbersHealth 665, 675, 7082.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 5:21 Medical malpractice/negligent treatment, medication overdose, failure to diagnose and delay in transfer of patient to intensive care unit; two plaintiffs, multiple defendantsA. BackgroundType of Case: Medical malpractice; negligent treatment of hospital patient, failure to diagnoseType of Injury/Damages: Alleged respiratory failure, anoxic brain damage, decerebration, numerous complicationsCase Name: Georgia DIMOULAS and Iraklis Dimoulas, Plaintiffs, v. New York Hospital Queens, and Sidney Obas, P.A. Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Janice A. TaylorDocket Number: 14397/2009Outcome: Verdict for plaintiff Geoergia Dimoulas including $250,000 for past pain and suffering; $300,000 for future pain and suffering for 9 years; $337,375 for past loss of earnings; $1,000,000 for future loss of earnings, for 14 years. Zero damages awarded to Iraklis Dimoulas for loss of consortiumDate of verdict: March 13, 2015Brief Summary of Factual Allegations: This was an action to recover damages for medical malpractice arising from the alleged negligence of defendants in their care and treatment of plaintiff Georgia Dimoulas during her hospitalization beginning on August 23, 2007 for sickle cell pain crisis, which resulted in plaintiff Georgia Dimoulas suffering brain damage. In the bills of particulars, plaintiff Georgia Dimoulas, and her husband plaintiff Iraklis Dimoulas suing derivatively, alleges that defendants committed medical malpractice on August 2.5, 2007 between 4:00 a.m. and 5:00 a.m. by, inter alia, prescribing and administering excessive doses of Dilaudid, administering an inadequate quantity of Narcan, failing to note plaintiff Georgia Dimoulas' blood chemistries, failing to monitor the vital signs of plaintiff Georgia Dimoulas after administering Narcan, and failing to administer oxygen and to intubate plaintiff Georgia Dimoulas.B. Requests to Charge1. Plaintiff's Request for Charge [annotated]Author's Note: The annotations indicating that certain instructions were denied or incorporated — set forth in brackets in the following list of instructions — are apparently those of plaintiff's counsel. The annotations appear in the PDF version of the document downloadable via a link at 2015WL 2150447.The proposed charges submitted by the defendants are set forth | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 5:21 Medical malpractice/negligent treatment, medication overdose, failure to diagnose and delay in transfer of patient to intensive care unit; two plaintiffs, multiple defendantsA. BackgroundType of Case: Medical malpractice; negligent treatment of hospital patient, failure to diagnoseType of Injury/Damages: Alleged respiratory failure, anoxic brain damage, decerebration, numerous complicationsCase Name: Georgia DIMOULAS and Iraklis Dimoulas, Plaintiffs, v. New York Hospital Queens, and Sidney Obas, P.A. Defendants.Court: New York State Supreme Court, Queens CountyJudge: Hon. Janice A. TaylorDocket Number: 14397/2009Outcome: Verdict for plaintiff Geoergia Dimoulas including $250,000 for past pain and suffering; $300,000 for future pain and suffering for 9 years; $337,375 for past loss of earnings; $1,000,000 for future loss of earnings, for 14 years. Zero damages awarded to Iraklis Dimoulas for loss of consortiumDate of verdict: March 13, 2015Brief Summary of Factual Allegations: This was an action to recover damages for medical malpractice arising from the alleged negligence of defendants in their care and treatment of plaintiff Georgia Dimoulas during her hospitalization beginning on August 23, 2007 for sickle cell pain crisis, which resulted in plaintiff Georgia Dimoulas suffering brain damage. In the bills of particulars, plaintiff Georgia Dimoulas, and her husband plaintiff Iraklis Dimoulas suing derivatively, alleges that defendants committed medical malpractice on August 2.5, 2007 between 4:00 a.m. and 5:00 a.m. by, inter alia, prescribing and administering excessive doses of Dilaudid, administering an inadequate quantity of Narcan, failing to note plaintiff Georgia Dimoulas' blood chemistries, failing to monitor the vital signs of plaintiff Georgia Dimoulas after administering Narcan, and failing to administer oxygen and to intubate plaintiff Georgia Dimoulas.B. Requests to Charge1. Plaintiff's Request for Charge [annotated]Author's Note: The annotations indicating that certain instructions were denied or incorporated — set forth in brackets in the following list of instructions — are apparently those of plaintiff's counsel. The annotations appear in the PDF version of the document downloadable via a link at 2015WL 2150447.The proposed charges submitted by the defendants are set forth |
| hereinbelow.1. | hereinbelow.1. PJI: 1:60 |
| Burden of | Burden of |
| Proof.[Deny]2. | Proof.[Deny]2. PJI 1:91 |
| Interested Witnesses | Interested Witnesses |
| [Incorp.]3. | [Incorp.]3. PJI 8:1 |
| Mental Hygiene Law-Incapacity-Proceeding for Appointment f a Guardian | Mental Hygiene Law-Incapacity-Proceeding for Appointment f a Guardian |
| [Deny]4. | [Deny]4. PJI 1:22 |
| Falsus in Uno | Falsus in Uno |
| [Incorp.]5. | [Incorp.]5. PJI 1:90 |
| Expert Witnesses | Expert Witnesses |
| [Incorp.]6. | [Incorp.]6. PJI 1:25A |
| Juror's Use of Professional Expertise | Juror's Use of Professional Expertise |
| [Incorp.]7. | [Incorp.]7. PJI 1:75 |
| Evidence-Failure to Produce Witness-General Instruction [with regard to Janice Williams PA and Robert Lewis MD] | Evidence-Failure to Produce Witness-General Instruction [with regard to Janice Williams PA and Robert Lewis MD] |
| [Incorp.]8. | [Incorp.]8. PJI 1:77 |
| General Instruction-Evidence-Failure to Produce Documents or Other Physical Evidence [with regard to records of examination and treatment on August 25, 2007] | General Instruction-Evidence-Failure to Produce Documents or Other Physical Evidence [with regard to records of examination and treatment on August 25, 2007] |
| [Deny]9. | [Deny]9. PJI 2:235 |
| Employer-Employee Vicarious or Derivative Responsibility-Employer-Employee-Scope of Employment | Employer-Employee Vicarious or Derivative Responsibility-Employer-Employee-Scope of Employment |
| [Incorp.]10. | [Incorp.]10. PJI 2:10 |
| Common Law Standard of Care-Negligence Defined-Generally | Common Law Standard of Care-Negligence Defined-Generally |
| [Incorp.]11. | [Incorp.]11. PJI 2:12 |
| Common Law Standard of Care-Foreseeability-Generally | Common Law Standard of Care-Foreseeability-Generally |
| [Deny]12. | [Deny]12. PJI 2:70 |
| Proximate Cause [Incorp.]13. PJI2:150. Medical Malpractice—Physician. [Assistant][Incorp.]14. PJI2:151. Negligence- Hospital- General Hospital | Proximate Cause [Incorp.]13. PJI2:150. Medical Malpractice—Physician. [Assistant][Incorp.]14. PJI2:151. Negligence- Hospital- General Hospital |
| [Deny]15. . | [Deny]15. PJI 2:65. |
| Res Ipsa Loquitur | Res Ipsa Loquitur |
| [Deny]16. | [Deny]16. PJI 2:36 |
| Comparative Fault | Comparative Fault |
| [Deny]17. :151A2. | [Deny]17. PJI 2:151A2. |
| Malpractice-Damages-Itemized Verdict | Malpractice-Damages-Itemized Verdict |
| [Incorp.]18. | [Incorp.]18. PJI 2:277 |
| General Damages | General Damages |
| [Incorp.]19. | [Incorp.]19. PJI 2:282 |
| Damages-Personal Injury-Aggravation of Pre-Existing Injury [annotation | Damages-Personal Injury-Aggravation of Pre-Existing Injury [annotation |
| unclear]20. . | unclear]20. PJI 2:283. |
| Damages-Personal Injury-Increased Susceptibility to Injury | Damages-Personal Injury-Increased Susceptibility to Injury |
| [Incorp.]22. | [Incorp.]22. PJI 2:290 |
| Damages-Loss of Earnings | Damages-Loss of Earnings |
| [Incorp.]24. . | [Incorp.]24. PJI 1:65. |
| General Instruction — Evidence Admitted for Limited | General Instruction — Evidence Admitted for Limited |
| Purpose.[Deny]26. | Purpose.[Deny]26. PJI 2:275 |
| Comparative Fault-Apportionment of Fault Between Defendants | Comparative Fault-Apportionment of Fault Between Defendants |
| [Deny]27. . | [Deny]27. PJI 2:275. |
| SV-I Damages—Apportionment of Fault | SV-I Damages—Apportionment of Fault |
| [Deny]28. . | [Deny]28. PJI 2:277. |
| General Damages [As amended in the 1996 Supplement to | General Damages [As amended in the 1996 Supplement to |
| PJI].[Deny]29. .Damages | PJI].[Deny]29. PJI 2:280.Damages |
| — Personal Injury — Injury and Pain and | — Personal Injury — Injury and Pain and |
| Suffering.[Incorp.]33. | Suffering.[Incorp.]33. PJI 2:284 |
| Damages — Personal Injury — Shock, Emotional Distress and Physical Consequences Thereof | Damages — Personal Injury — Shock, Emotional Distress and Physical Consequences Thereof |
| [Incorp.]34. | [Incorp.]34. PJI 2:315 |
| Damages-Derivative Action re Spouse-Loss of Service | Damages-Derivative Action re Spouse-Loss of Service |
| [Incorp.]35. . | [Incorp.]35. PJI 2:281. |
| Permanence - Life Expectancy Tables | Permanence - Life Expectancy Tables |
| [Incorp.]36. .Loss | [Incorp.]36. PJI 2:280.1.Loss |
| of Enjoyment of | of Enjoyment of |
| Life.[Incorp.]38. . | Life.[Incorp.]38. PJI 1:97. |
| Special Verdict [Incorp.]2. Defendants' Request to ChargeAuthor's Note: Annotations on the PDF version of the Defendants' Request to Charge, available for download at 2015 WL 2150543, indicate that all of the charges were “incorporated” into the actual charges | Special Verdict [Incorp.]2. Defendants' Request to ChargeAuthor's Note: Annotations on the PDF version of the Defendants' Request to Charge, available for download at 2015 WL 2150543, indicate that all of the charges were “incorporated” into the actual charges |
| given.1.. Introduction2.. | given.1.PJI 1:20. Introduction2.PJI 1:21. |
| Principles | Principles |
| Reviewed3.. | Reviewed3.PJI 1:22. |
| Falsus in | Falsus in |
| Uno4.. | Uno4.PJI 1:23. |
| Burden of | Burden of |
| Proof5.. | Proof5.PJI 1:24. |
| Return to | Return to |
| Courtroom6.. | Courtroom6.PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7.. | Exhibits7.PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8.. | Verdict8.PJI 1:27. |
| Exclude | Exclude |
| Sympathy9.. | Sympathy9.PJI 1:90. |
| Expert Witness (see | Expert Witness (see |
| attached)10.. | attached)10.PJI 1:91. |
| Interested Witness (see | Interested Witness (see |
| attached)11.. | attached)11.PJI 1:97. |
| Special | Special |
| Verdicts12.. | Verdicts12.PJI 2:150. |
| Malpractice — Physician Malpractice is professional negligence and medical malpractice is the negligence of a physician assistant. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent physician assistant would not do under the circumstances, or failing to do something that a reasonably prudent physician assistant would do under the circumstances. It is a deviation or departure from accepted practice. A physician assistant who renders medical service to a patient is obligated to have that reasonable degree of knowledge and skill that is expected of an average physician assistant who provides that medical service in the medical community in which the physician assistant practices. The law recognizes that there are differences in the abilities of physician assistants, just as there are differences in the abilities of people engaged in other activities. To practice medicine a physician assistant is not required to have the extraordinary knowledge and ability that belongs to a few physician assistants of exceptional ability. However every physician assistant is required to keep reasonably informed of new developments in his/her field and to practice medicine in accordance with approved methods and means of treatment in general use. A physician assistant must also use his or her best judgment and whatever superior knowledge and skill he/she possesses, even if the knowledge and skill exceeds that possessed by the average physician assistant in the medical community where the physician assistant practices. By undertaking to perform a medical service, a physician assistant does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the physician assistant liable. The physician assistant is liable only if he/she was negligent. Whether the physician assistant was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence. A physician assistant is not liable for an error in judgment if he/she does what he/she decides is best after careful evaluation if it is a judgment that a reasonably prudent physician assistant could have made under the circumstances. In other words, a physician assistant is not liable for malpractice if he or she chooses one of two or more medically acceptable courses of action. If the physician assistant is negligent, that is, lacks the skill or knowledge required of him/her in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment, and such failure is a substantial factor in causing harm to the patient, then the physician assistant is responsible for the injury or harm | Malpractice — Physician Malpractice is professional negligence and medical malpractice is the negligence of a physician assistant. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent physician assistant would not do under the circumstances, or failing to do something that a reasonably prudent physician assistant would do under the circumstances. It is a deviation or departure from accepted practice. A physician assistant who renders medical service to a patient is obligated to have that reasonable degree of knowledge and skill that is expected of an average physician assistant who provides that medical service in the medical community in which the physician assistant practices. The law recognizes that there are differences in the abilities of physician assistants, just as there are differences in the abilities of people engaged in other activities. To practice medicine a physician assistant is not required to have the extraordinary knowledge and ability that belongs to a few physician assistants of exceptional ability. However every physician assistant is required to keep reasonably informed of new developments in his/her field and to practice medicine in accordance with approved methods and means of treatment in general use. A physician assistant must also use his or her best judgment and whatever superior knowledge and skill he/she possesses, even if the knowledge and skill exceeds that possessed by the average physician assistant in the medical community where the physician assistant practices. By undertaking to perform a medical service, a physician assistant does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the physician assistant liable. The physician assistant is liable only if he/she was negligent. Whether the physician assistant was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence. A physician assistant is not liable for an error in judgment if he/she does what he/she decides is best after careful evaluation if it is a judgment that a reasonably prudent physician assistant could have made under the circumstances. In other words, a physician assistant is not liable for malpractice if he or she chooses one of two or more medically acceptable courses of action. If the physician assistant is negligent, that is, lacks the skill or knowledge required of him/her in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment, and such failure is a substantial factor in causing harm to the patient, then the physician assistant is responsible for the injury or harm |
| caused.13.. | caused.13.PJI 2:70. |
| Proximate | Proximate |
| Cause14.. | Cause14.PJI 2:277. |
| Damages — | Damages — |
| General15.. | General15.PJI 2:277A. |
| Comment by | Comment by |
| Counsel16.. | Counsel16.PJI 2:280. |
| Pain & | Pain & |
| Suffering17.. | Suffering17.PJI 2:290. |
| Loss of | Loss of |
| Earnings18.. | Earnings18.PJI 2:315. |
| Derivative Action- | Derivative Action- |
| Spouse19.. | Spouse19.PJI 2:281. |
| Life | Life |
| Expectancy20.. Taxes21.. Conclusion22.. | Expectancy20.PJI 2:280.2. Taxes21.PJI 1:28. Conclusion22.PJI 1:29. |
| Alternate | Alternate |
| Jurors23.. | Jurors23.PJI 1:90. |
| Expert | Expert |
| Witness24.. | Witness24.PJI 1:91. |
| Interested WitnessC. Case Documents available on | Interested WitnessC. Case Documents available on |
| Westlaw | Westlaw2008 WL 10642480 (N.Y.Sup.) |
| (Trial Pleading), Verified | (Trial Pleading), Verified |
| Complaint | Complaint2009 WL 10228804 (N.Y.Sup.) |
| (Trial Pleading), Verified | (Trial Pleading), Verified |
| Complaint | Complaint2010 WL 10879065 (N.Y.Sup.) |
| (Trial Order), Trial Order for | (Trial Order), Trial Order for |
| consolidation | consolidation2010 WL 10879393 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in | (Trial Motion, Memorandum and Affidavit), Affirmation in |
| Support | Support2011 WL 12525174 (N.Y.Sup.) |
| (Trial Order), Trial Order granting summary judgment to certain defendant for failure to effectuate proper | (Trial Order), Trial Order granting summary judgment to certain defendant for failure to effectuate proper |
| service | service2011 WL 12526009 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in | (Trial Motion, Memorandum and Affidavit), Affirmation in |
| Support | Support2011 WL 12526010 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in | (Trial Motion, Memorandum and Affidavit), Affirmation in |
| Support | Support2011 WL 12526016 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Cross Motion and Affirmation in | (Trial Motion, Memorandum and Affidavit), Cross Motion and Affirmation in |
| Opposition | Opposition2011 WL 12526019 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), | (Trial Motion, Memorandum and Affidavit), |
| Affirmation | Affirmation2011 WL 12526020 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in | (Trial Motion, Memorandum and Affidavit), Affirmation in |
| Support | Support2011 WL 12545291 (N.Y.Sup.) |
| (Expert Report and Affidavit), Expert Affirmation of David L. Giuguid, | (Expert Report and Affidavit), Expert Affirmation of David L. Giuguid, |
| M.D. | M.D.2012 WL 11923515 (N.Y.Sup.) |
| (Expert Report and Affidavit), Expert's Affirmation of Daniel B. Rubin, M.D., | (Expert Report and Affidavit), Expert's Affirmation of Daniel B. Rubin, M.D., |
| Ph.D. | Ph.D.2012 WL 11923516 (N.Y.Sup.) |
| (Expert Report and Affidavit), Expert Affirmation of David L. Giuguid, | (Expert Report and Affidavit), Expert Affirmation of David L. Giuguid, |
| M.D. | M.D.2012 WL 11923013 (N.Y.Sup.) |
| (Trial Order), Order [granting summary judgment to certain | (Trial Order), Order [granting summary judgment to certain |
| defendants] | defendants]2012 WL 11923945 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Attorney Affirmation in Reply and in Further Support of Summary | (Trial Motion, Memorandum and Affidavit), Attorney Affirmation in Reply and in Further Support of Summary |
| Judgment | Judgment2012 WL 11923948 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Reply | (Trial Motion, Memorandum and Affidavit), Reply |
| Affirmation | Affirmation2012 WL 11923952 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Memorandum of Law in support of defendants' motion for summary | (Trial Motion, Memorandum and Affidavit), Memorandum of Law in support of defendants' motion for summary |
| judgment | judgment2012 WL 11923953 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Reply | (Trial Motion, Memorandum and Affidavit), Reply |
| Affirmation | Affirmation2012 WL 11923957 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Reply | (Trial Motion, Memorandum and Affidavit), Reply |
| Affirmation | Affirmation2012 WL 11923959 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Attorney's Affirmation in Opposition to Motions for Summary | (Trial Motion, Memorandum and Affidavit), Attorney's Affirmation in Opposition to Motions for Summary |
| Judgment | Judgment2012 WL 11923961 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in Opposition and | (Trial Motion, Memorandum and Affidavit), Affirmation in Opposition and |
| Reply | Reply2015 WL 2150543 (N.Y.Sup.) |
| (Jury Instruction), Requests to Charge [by | (Jury Instruction), Requests to Charge [by |
| Defendants] | Defendants]2015 WL 2150447 (N.Y.Sup.) |
| (Jury Instruction), Plaintiffs' Requests for | (Jury Instruction), Plaintiffs' Requests for |
| Charge | Charge2015 WL 2066685 (N.Y.Sup.) |
| (Verdict, Agreement and | (Verdict, Agreement and |
| Settlement) | Settlement)2015 WL 2102930 (N.Y.Sup.) |
| (Trial Order), | (Trial Order), |
| Judgment | Judgment2015 WL 2102931 (N.Y.Sup.) |
| (Trial Order), Trial OrderDimoulas v Roca, 120 AD3d 1293 [2d Dept 2014], Decision reversing order granting defendants' motion to precludeSample Westlaw Query for Trial Court documents in Similar Cases: dilaudid or narcanD. Research References1.Key | (Trial Order), Trial OrderDimoulas v Roca, 120 AD3d 1293 [2d Dept 2014], Decision reversing order granting defendants' motion to precludeSample Westlaw Query for Trial Court documents in Similar Cases: dilaudid or narcanD. Research References1.Key |
| Numbers , , , , , 2.Westlaw | NumbersHealth 637, 652, 657, 668, 827, 8282.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 5:22 Medical malpractice/wrongful death/pre-natal treatmentA. BackgroundType of Case: Medical malpractice; negligence in pre-natal treatment leading to death.Type of Injury/Damages: Conscious pain and suffering; wrongful death.Case Name: Carmen Colon DIAZ, as Administratrix of the Goods, Chattels and Credits which were of Glenda Colon, Deceased and Carmen Colon Diaz individually, Plaintiffs,v.Daniel CERBONE, D.O., Michael Ihemaguba, M.D., David Dayya, D.O., Jean E. Dorce, D.O., Ndubueze Okereke, M.D., Christopher Leong, D.O., Winston Neckles, M.D., Tiruwork Wondemunegne, D.O., Ashwin Shetty, D.O., Fenar Themistocle, M.D., Beth Longenecker, M.D., St. Barnabas Hospital and Union Community Health Center, Defendants.Court: New York State Supreme Court, Bronx County.Docket Number: 223212006.Outcome: Unknown.Brief Summary of Factual Allegations: This was an action against several physicians and medical institutions for conscious pain and suffering as well as wrongful death arising from pre-natal care and treatment of the plaintiff's decedent based on medical, obstetrical, gynecological, neurological, radiological, diagnostic, technical, and/or nursing examinations, evaluations, care, treatments, procedures, tests, studies, services, or advise ordered, requested, recommended, advised, performed, rendered, or provided to the plaintiff's decedent.B. Defendants' Request to ChargeThe following is the request to charge submitted by defendants NDUBUEZE OKEREKE, M.D., CHRISTOPHER LEONG, D.O., and WINSTON NECKLES, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 5:22 Medical malpractice/wrongful death/pre-natal treatmentA. BackgroundType of Case: Medical malpractice; negligence in pre-natal treatment leading to death.Type of Injury/Damages: Conscious pain and suffering; wrongful death.Case Name: Carmen Colon DIAZ, as Administratrix of the Goods, Chattels and Credits which were of Glenda Colon, Deceased and Carmen Colon Diaz individually, Plaintiffs,v.Daniel CERBONE, D.O., Michael Ihemaguba, M.D., David Dayya, D.O., Jean E. Dorce, D.O., Ndubueze Okereke, M.D., Christopher Leong, D.O., Winston Neckles, M.D., Tiruwork Wondemunegne, D.O., Ashwin Shetty, D.O., Fenar Themistocle, M.D., Beth Longenecker, M.D., St. Barnabas Hospital and Union Community Health Center, Defendants.Court: New York State Supreme Court, Bronx County.Docket Number: 223212006.Outcome: Unknown.Brief Summary of Factual Allegations: This was an action against several physicians and medical institutions for conscious pain and suffering as well as wrongful death arising from pre-natal care and treatment of the plaintiff's decedent based on medical, obstetrical, gynecological, neurological, radiological, diagnostic, technical, and/or nursing examinations, evaluations, care, treatments, procedures, tests, studies, services, or advise ordered, requested, recommended, advised, performed, rendered, or provided to the plaintiff's decedent.B. Defendants' Request to ChargeThe following is the request to charge submitted by defendants NDUBUEZE OKEREKE, M.D., CHRISTOPHER LEONG, D.O., and WINSTON NECKLES, |
| M.D.:1. . | M.D.:1. PJI 2:150. |
| Malpractice—Physician [modified]Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. Medical malpractice is a deviation or departure from good and accepted practice which is a competent producing cause of an injury sustained by a patient.A doctor who renders a medical service is obligated to have that reasonable degree of knowledge and ability that is expected of doctors in the same specialty in the medical community in which the doctor practices. Accordingly, Dr. Chern was obligated to have that degree of knowledge and ability possessed by other physicians in her medical community who specialize in ophthalmology.The law recognizes that there are differences in the abilities of physicians, just as there are in the abilities of people engaged in other activities. To practice his or her profession a doctor is not required to possess the extraordinary knowledge and ability that belong to only a few people of rare endowment, but he or she is required to keep abreast of the times and to practice in accordance with the approved method and means of treatment in general use.By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the physician doctor liable. The doctor is only liable if she was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.A doctor is not liable for an error in judgment if she does what she decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances. The rule of reasonable care does not require the physician to exercise the highest possible degree of care. In other words, a doctor is not liable for malpractice if she chooses one of two or more medically acceptable courses of action. A doctor is not required to treat a patient in a particular manner merely because some other doctor considers such a manner to be the best approach. A doctor is entitled to, as well as required to, consider his own experience in the selection of a manner in which to treat a patient. (Nestorowich v. Ricotta, 97 N.Y.2d 393, 740 N.Y.S.2d 668 (2002); Centeno v. New York, 48 A.D.2d. 812, 369 N.Y. S.N.Y.S.2d, 710 (1st Dept. 1975); | Malpractice—Physician [modified]Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. Medical malpractice is a deviation or departure from good and accepted practice which is a competent producing cause of an injury sustained by a patient.A doctor who renders a medical service is obligated to have that reasonable degree of knowledge and ability that is expected of doctors in the same specialty in the medical community in which the doctor practices. Accordingly, Dr. Chern was obligated to have that degree of knowledge and ability possessed by other physicians in her medical community who specialize in ophthalmology.The law recognizes that there are differences in the abilities of physicians, just as there are in the abilities of people engaged in other activities. To practice his or her profession a doctor is not required to possess the extraordinary knowledge and ability that belong to only a few people of rare endowment, but he or she is required to keep abreast of the times and to practice in accordance with the approved method and means of treatment in general use.By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the physician doctor liable. The doctor is only liable if she was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.A doctor is not liable for an error in judgment if she does what she decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances. The rule of reasonable care does not require the physician to exercise the highest possible degree of care. In other words, a doctor is not liable for malpractice if she chooses one of two or more medically acceptable courses of action. A doctor is not required to treat a patient in a particular manner merely because some other doctor considers such a manner to be the best approach. A doctor is entitled to, as well as required to, consider his own experience in the selection of a manner in which to treat a patient. (Nestorowich v. Ricotta, 97 N.Y.2d 393, 740 N.Y.S.2d 668 (2002); Centeno v. New York, 48 A.D.2d. 812, 369 N.Y. S.N.Y.S.2d, 710 (1st Dept. 1975); |
| : 150).2. . | NY PJI 2: 150).2. PJI 2:151. |
| Negligence—Hospital—General | Negligence—Hospital—General |
| Hospital3. . | Hospital3. PJI 2:235. |
| Liability for the Conduct of Another—Employer-Employee—Scope of | Liability for the Conduct of Another—Employer-Employee—Scope of |
| Employment4. . | Employment4. PJI 2:150. |
| Malpractice—Physician [modified]If a patient should sustain an injury while undergoing medical care and that injury should result from the doctor's lack of knowledge or ability, or from his failure to exercise reasonable care, or to use his best judgment, then the doctor is responsible, but only for the injuries that are the result of his acts; the doctor is not responsible for any injuries which are not the result of his | Malpractice—Physician [modified]If a patient should sustain an injury while undergoing medical care and that injury should result from the doctor's lack of knowledge or ability, or from his failure to exercise reasonable care, or to use his best judgment, then the doctor is responsible, but only for the injuries that are the result of his acts; the doctor is not responsible for any injuries which are not the result of his |
| acts.5. . | acts.5. PJI 1:23. |
| Burden of proof [modified]The plaintiffs have the burden of proof. This means that the plaintiffs must prove each and every element of their claim by a fair preponderance of the credible evidence. Should the plaintiffs fail to meet the burden of proof as to any material element of their claim, then your verdict must be for the defendant. (NY PJI 1:23).The burden of proof rests upon the plaintiffs to establish by a fair preponderance of the credible evidence that the defendant was negligent in the care of the decedent in that the defendant deviated from accepted medical practice and further, that this deviation was the competent, substantial cause of the injuries claimed by the plaintiffs. The burden of establishing both of these essential elements rests upon the plaintiffs' introduction of expert medical testimony | Burden of proof [modified]The plaintiffs have the burden of proof. This means that the plaintiffs must prove each and every element of their claim by a fair preponderance of the credible evidence. Should the plaintiffs fail to meet the burden of proof as to any material element of their claim, then your verdict must be for the defendant. (NY PJI 1:23).The burden of proof rests upon the plaintiffs to establish by a fair preponderance of the credible evidence that the defendant was negligent in the care of the decedent in that the defendant deviated from accepted medical practice and further, that this deviation was the competent, substantial cause of the injuries claimed by the plaintiffs. The burden of establishing both of these essential elements rests upon the plaintiffs' introduction of expert medical testimony |
| (; | (Pike v. Honsinger, 155 N.Y. 201 (1898); |
| McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65 (1964)).To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. (NY PJI 1:23).If the evidence is equally balanced between the plaintiffs and the defendant on any issue, then the plaintiffs have failed to meet the burden of proof and your verdict must be for the defendant. | McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65 (1964)).To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. (NY PJI 1:23).If the evidence is equally balanced between the plaintiffs and the defendant on any issue, then the plaintiffs have failed to meet the burden of proof and your verdict must be for the defendant. |
| ()6. Proximate | (NY PJI 1:23)6. Proximate |
| causeIf the plaintiffs prove that the defendant committed malpractice, but fail to prove that such malpractice was the proximate cause of the plaintiff's injuries, then your verdict must be for the defendant. If you find that the defendant deviated from accepted medical practice but also find that he did not cause the injuries alleged, then your verdict must be for the defendant. (Dorsey v. Knickerbocker Hospital, 26 A.D.2d 541, 271 N.Y.S.2d 727 (1st Dep't. 1966)).7. Two or more causesWhen there are two or more possible causes of an injury, one or more of which the defendant is not responsible for, the plaintiffs have failed to meet their burden of proof and your verdict must be for the defendant. (Benson v. Dean, 232 N.Y. 52 (1921); Grant v. Pennsylvania & N.Y. Canal & R. Co., 133 N.Y. 657 (1892); Yaggle v. Allen, 24 A.D. 594, 48 N.Y.S. 827 (3d Dep't. 1898)).8. Presumptions, hindsightA deviation or departure from good and accepted medical practice cannot be presumed from the result, nor may it be determined on the basis of hindsight, guess work or speculation. (Garcia v. Nyack Hospital, 49 A.D.2d 937, 373 N.Y.S.2d 879 (2nd Dep't. 1975); Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't. | causeIf the plaintiffs prove that the defendant committed malpractice, but fail to prove that such malpractice was the proximate cause of the plaintiff's injuries, then your verdict must be for the defendant. If you find that the defendant deviated from accepted medical practice but also find that he did not cause the injuries alleged, then your verdict must be for the defendant. (Dorsey v. Knickerbocker Hospital, 26 A.D.2d 541, 271 N.Y.S.2d 727 (1st Dep't. 1966)).7. Two or more causesWhen there are two or more possible causes of an injury, one or more of which the defendant is not responsible for, the plaintiffs have failed to meet their burden of proof and your verdict must be for the defendant. (Benson v. Dean, 232 N.Y. 52 (1921); Grant v. Pennsylvania & N.Y. Canal & R. Co., 133 N.Y. 657 (1892); Yaggle v. Allen, 24 A.D. 594, 48 N.Y.S. 827 (3d Dep't. 1898)).8. Presumptions, hindsightA deviation or departure from good and accepted medical practice cannot be presumed from the result, nor may it be determined on the basis of hindsight, guess work or speculation. (Garcia v. Nyack Hospital, 49 A.D.2d 937, 373 N.Y.S.2d 879 (2nd Dep't. 1975); Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dep't. |
| 1976)).9. . | 1976)).9. PJI 2:70. |
| Proximate cause—In General10. Competent medical proofA finding that the plaintiff's injuries were proximately caused by acts or omissions, which were deviations from good and accepted medical practice, must be supported by competent medical proof.11. Expert testimonyTestimony introduced by the plaintiffs seeking to establish medical deviation was the competent producing cause of the injuries claimed, must come from a physician qualified as an expert in that field. If from all of the testimony, you conclude that plaintiffs' expert was not qualified to express the opinions that she did during the course of the trial, you may reject that opinion.The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call “expert witnesses.“ Witnesses, who, by education and experience, have become expert in some art, science, profession, or calling may state their opinions as to relevant and material matters, in which they profess to be expert, and may also state their reasons for the opinion.You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely. (fromNY | Proximate cause—In General10. Competent medical proofA finding that the plaintiff's injuries were proximately caused by acts or omissions, which were deviations from good and accepted medical practice, must be supported by competent medical proof.11. Expert testimonyTestimony introduced by the plaintiffs seeking to establish medical deviation was the competent producing cause of the injuries claimed, must come from a physician qualified as an expert in that field. If from all of the testimony, you conclude that plaintiffs' expert was not qualified to express the opinions that she did during the course of the trial, you may reject that opinion.The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call “expert witnesses.“ Witnesses, who, by education and experience, have become expert in some art, science, profession, or calling may state their opinions as to relevant and material matters, in which they profess to be expert, and may also state their reasons for the opinion.You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely. (fromNY |
| ).12. Statements | PJI 1:90).12. Statements |
| of attorneysI remind you that the statements of attorneys are not evidence and that you are not to consider them as such in rendering your verdict. This includes not only the closing statements which you have just heard, but also the opening statements presented to you at the inception of the case and any statement made by counsel during the course of the trial.13. SympathyYou are not to be affected by sympathy for any of the parties in reaching your verdict.14. CredibilityYou, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testified, or by the character of the testimony given, or by evidence to the contrary of the testimony given.15. Relevant considerations when evaluating testimonyYou should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's intelligence, motive and state of mind, as well as demeanor and manner while on the stand. Consider the witness's ability to observe the matters as to which he or she has testified, and whether they impress you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.16. Inconsistencies or discrepancies in testimonyInconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from an innocent error or intentional falsehood.17. Weight of testimonyAfter making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it deserves. (citing NY PJI 1:27; | of attorneysI remind you that the statements of attorneys are not evidence and that you are not to consider them as such in rendering your verdict. This includes not only the closing statements which you have just heard, but also the opening statements presented to you at the inception of the case and any statement made by counsel during the course of the trial.13. SympathyYou are not to be affected by sympathy for any of the parties in reaching your verdict.14. CredibilityYou, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testified, or by the character of the testimony given, or by evidence to the contrary of the testimony given.15. Relevant considerations when evaluating testimonyYou should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's intelligence, motive and state of mind, as well as demeanor and manner while on the stand. Consider the witness's ability to observe the matters as to which he or she has testified, and whether they impress you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.16. Inconsistencies or discrepancies in testimonyInconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from an innocent error or intentional falsehood.17. Weight of testimonyAfter making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it deserves. (citing NY PJI 1:27; |
| ).18. . | NY PJI 1:91).18. PJI 1:26. |
| Five-sixth verdict19. Damages not to be considered until liability is determinedI charge you that you may not consider the issue of damages until you have determined that liability exists against the defendant. You are not to discuss damages unless you complete your discussion on the issue of liability and determine that liability exists. If at the completion of your discussion of liability you conclude that no liability exists, you are to return a verdict for the defendant without entering into any discussion on the issue of | Five-sixth verdict19. Damages not to be considered until liability is determinedI charge you that you may not consider the issue of damages until you have determined that liability exists against the defendant. You are not to discuss damages unless you complete your discussion on the issue of liability and determine that liability exists. If at the completion of your discussion of liability you conclude that no liability exists, you are to return a verdict for the defendant without entering into any discussion on the issue of |
| damages.20. . Damages—General21. . | damages.20. PJI 2:277. Damages—General21. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering [modified]If you believe that defendant is liable, plaintiff is entitled to recover a sum of money which will justify and fairly compensate him/her for the injury and conscious pain and suffering caused by the | Damages—Personal Injury—Injury and Pain and Suffering [modified]If you believe that defendant is liable, plaintiff is entitled to recover a sum of money which will justify and fairly compensate him/her for the injury and conscious pain and suffering caused by the |
| defendant.22. . | defendant.22. PJI 2:280.2. |
| Damages—Income tax-freeC. Case Documents Available on | Damages—Income tax-freeC. Case Documents Available on |
| Westlaw | Westlaw2006 WL 8423057 (N.Y.Sup.) |
| (Trial Pleading), Verified | (Trial Pleading), Verified |
| Complaint | Complaint2011 WL 13142482 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in Support of plaintiff'smotion to strike | (Trial Motion, Memorandum and Affidavit), Affirmation in Support of plaintiff'smotion to strike |
| answer | answer2011 WL 13142481 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in opposition to plaintiff's motion to strike defendants' | (Trial Motion, Memorandum and Affidavit), Affirmation in opposition to plaintiff's motion to strike defendants' |
| answer | answer2012 WL 12905058 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in support of plaintiff's motion to strike | (Trial Motion, Memorandum and Affidavit), Affirmation in support of plaintiff's motion to strike |
| answer | answer2012 WL 12905057 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in Opposition to plaintiff's motion to strike defendants' | (Trial Motion, Memorandum and Affidavit), Affirmation in Opposition to plaintiff's motion to strike defendants' |
| answer | answer2016 WL 7245581 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Plaintiff's Memorandum of Law in support of motion in | (Trial Motion, Memorandum and Affidavit), Plaintiff's Memorandum of Law in support of motion in |
| limine | limine2016 WL 7245582 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Defendants' Memorandum of Law in opposition to permit certain | (Trial Motion, Memorandum and Affidavit), Defendants' Memorandum of Law in opposition to permit certain |
| evidence | evidence2016 WL 7245583 (N.Y.Sup.) |
| (Jury Instruction), Request to Charge Submitted on Behalf of | (Jury Instruction), Request to Charge Submitted on Behalf of |
| Defendants | Defendants2016 WL 7245584 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Memorandum of law in support of defendants' motion to dismissD. Research References1.Key | (Trial Motion, Memorandum and Affidavit), Memorandum of law in support of defendants' motion to dismissD. Research References1.Key |
| Numbers , , 2.Westlaw | NumbersHealth 611, 612, 6172.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents—Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 5:23 Medical malpractice/ob/gyn/stillbornA. BackgroundType of Case: Medical malpractice; pre-natal care and delivery; stillborn child.Type of Injury/Damages: Pain and suffering by child and mother; wrongful death of child.Case Name: Olga KULYNSKA as the Administrator of the Estate of Nikita Kulynska and Olga Kulynska, Individually, Plaintiffs, v. Kamila AGAYEVA, M.D., Advanced OB/GYN and Lutheran Medical Center, Defendants.Court: New York State Supreme Court, Kings County.Judge: Hon. Debra Silver.Docket Number: 8690/2009.Outcome: Verdict in favor of individual defendant physician and professional corporation, no verdict as to Lutheran Medical Center.Date of verdict: December 23, 2016.Brief Summary of Factual Allegations: The complaint broadly alleges negligence in pre-natal case and in delivery of the stillborn child, against treating physicians and related medical institutions.B. Defendants'Requests to ChargeThe following request to charge was submitted on behalf of the individual physician defendants and Advanced OB/GYN, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents—Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 5:23 Medical malpractice/ob/gyn/stillbornA. BackgroundType of Case: Medical malpractice; pre-natal care and delivery; stillborn child.Type of Injury/Damages: Pain and suffering by child and mother; wrongful death of child.Case Name: Olga KULYNSKA as the Administrator of the Estate of Nikita Kulynska and Olga Kulynska, Individually, Plaintiffs, v. Kamila AGAYEVA, M.D., Advanced OB/GYN and Lutheran Medical Center, Defendants.Court: New York State Supreme Court, Kings County.Judge: Hon. Debra Silver.Docket Number: 8690/2009.Outcome: Verdict in favor of individual defendant physician and professional corporation, no verdict as to Lutheran Medical Center.Date of verdict: December 23, 2016.Brief Summary of Factual Allegations: The complaint broadly alleges negligence in pre-natal case and in delivery of the stillborn child, against treating physicians and related medical institutions.B. Defendants'Requests to ChargeThe following request to charge was submitted on behalf of the individual physician defendants and Advanced OB/GYN, |
| P.C.:1. . | P.C.:1. PJI 1:23. |
| Falsus in | Falsus in |
| Uno2. . | Uno2. PJI 1:24. |
| Return to | Return to |
| courtroom3. | courtroom3. PJI 2:150 |
| Malpractice—Physician [modified]:Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. Medical malpractice is a deviation or departure from good and accepted practice which is a competent producing cause of an injury sustained by a patient.A doctor who renders a medical service is obligated to have that reasonable degree of knowledge and ability that is expected of doctors in the same specialty in the medical community in which the doctor practices. Accordingly, the defendants were obligated to have that degree of knowledge and ability possessed by other physicians in their medical community who specialize in obstetrics.The law recognizes that there are differences in the abilities of physicians, just as there are in the abilities of people engaged in other activities. To practice his or her profession a doctor is not required to possess the extraordinary knowledge and ability that belong to only a few people of rare endowment, but he or she is required to keep reasonably informed of new developments in his field and to practice medicine in accordance with approved methods and means of treatment in general use. A doctor must also use her best judgment.By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the physician doctor liable. The doctor is only liable if she was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence. A doctor is not liable for an error in judgment if she does what she decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances. The rule of reasonable care does not require the physician to exercise the highest possible degree of care. In other words, a doctor is not liable for malpractice if she chooses one of two or more medically acceptable courses of action. A doctor is not required to treat a patient in a particular manner merely because some other doctor considers such a manner to be the best approach. A doctor is entitled to, as well as required to, consider her own experience in the selection of a manner in which to treat a patient. | Malpractice—Physician [modified]:Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. Medical malpractice is a deviation or departure from good and accepted practice which is a competent producing cause of an injury sustained by a patient.A doctor who renders a medical service is obligated to have that reasonable degree of knowledge and ability that is expected of doctors in the same specialty in the medical community in which the doctor practices. Accordingly, the defendants were obligated to have that degree of knowledge and ability possessed by other physicians in their medical community who specialize in obstetrics.The law recognizes that there are differences in the abilities of physicians, just as there are in the abilities of people engaged in other activities. To practice his or her profession a doctor is not required to possess the extraordinary knowledge and ability that belong to only a few people of rare endowment, but he or she is required to keep reasonably informed of new developments in his field and to practice medicine in accordance with approved methods and means of treatment in general use. A doctor must also use her best judgment.By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the physician doctor liable. The doctor is only liable if she was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence. A doctor is not liable for an error in judgment if she does what she decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances. The rule of reasonable care does not require the physician to exercise the highest possible degree of care. In other words, a doctor is not liable for malpractice if she chooses one of two or more medically acceptable courses of action. A doctor is not required to treat a patient in a particular manner merely because some other doctor considers such a manner to be the best approach. A doctor is entitled to, as well as required to, consider her own experience in the selection of a manner in which to treat a patient. |
| (, | (Nestorowich v. Ricotta, |
| 97 N.Y.2d 393, | 97 N.Y.2d 393, |
| ; | 740 N.Y.S.2d 668 (2002); |
| Centeno v. New York, 48 A.D.2d. 812, 369 N.Y. S.N.Y.S.2d, 710 [1st Dept. 1975]; NY PJI 2: 150).4. Doctor's liability limited to injuries that result from malpractice:If a patient should sustain an injury while undergoing medical care and that injury should result from the doctor's lack of knowledge or ability, or from her failure to exercise reasonable care, or to use her best judgment, then the doctor is responsible, but only for the injuries that are the result of her acts; the doctor is not responsible for any injuries which are not the result of her acts. (Bender v. Nassau Hosp., 99 A.D.2d 744, 471 N.Y.S.2d 657 (2d Dept. | Centeno v. New York, 48 A.D.2d. 812, 369 N.Y. S.N.Y.S.2d, 710 [1st Dept. 1975]; NY PJI 2: 150).4. Doctor's liability limited to injuries that result from malpractice:If a patient should sustain an injury while undergoing medical care and that injury should result from the doctor's lack of knowledge or ability, or from her failure to exercise reasonable care, or to use her best judgment, then the doctor is responsible, but only for the injuries that are the result of her acts; the doctor is not responsible for any injuries which are not the result of her acts. (Bender v. Nassau Hosp., 99 A.D.2d 744, 471 N.Y.S.2d 657 (2d Dept. |
| 1984)).5–9. . | 1984)).5–9. PJI 1:23. |
| Burden of proof [modified]5. The plaintiff has the burden of proof. This means that the plaintiff must prove each and every element of her claim by a fair preponderance of the credible evidence. Should the plaintiff fail to meet the burden of proof as to any material element of their claim, then your verdict must be for the defendants. | Burden of proof [modified]5. The plaintiff has the burden of proof. This means that the plaintiff must prove each and every element of her claim by a fair preponderance of the credible evidence. Should the plaintiff fail to meet the burden of proof as to any material element of their claim, then your verdict must be for the defendants. |
| (: | (NY PJI 1: |
| 23).6. The burden of proof rests upon the plaintiff to establish by a fair preponderance of the credible evidence that the defendants were negligent in the care of the plaintiff in that the defendants deviated from accepted medical practice and further, that this deviation was the competent, substantial cause of the injuries claimed by the plaintiff. The burden of establishing both of these essential elements rests upon the plaintiffs introduction of expert medical testimony (Pike v. Honsinger, 155 N.Y. 201 (1898); McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65 (1964)).7. To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in this case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. | 23).6. The burden of proof rests upon the plaintiff to establish by a fair preponderance of the credible evidence that the defendants were negligent in the care of the plaintiff in that the defendants deviated from accepted medical practice and further, that this deviation was the competent, substantial cause of the injuries claimed by the plaintiff. The burden of establishing both of these essential elements rests upon the plaintiffs introduction of expert medical testimony (Pike v. Honsinger, 155 N.Y. 201 (1898); McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65 (1964)).7. To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in this case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. |
| ().To | (NY PJI 1:23).To |
| “establish by a preponderance of the evidence” refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds. The law requires that in order for the plaintiff to prevail on a claim, the evidence that supports her claim must appeal to you as more nearly representing what took place than the evidence opposed to her claim.In determining whether any fact in issue has been proved by a preponderance of the evidence, the jury may, unless otherwise instructed, refer to the testimony or exhibits that you find to be worthy to be believed.8. If the evidence is equally balanced between the plaintiff and the defendants on any issue, then the plaintiff has failed to meet her burden of proof and your verdict must be for the defendants. | “establish by a preponderance of the evidence” refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds. The law requires that in order for the plaintiff to prevail on a claim, the evidence that supports her claim must appeal to you as more nearly representing what took place than the evidence opposed to her claim.In determining whether any fact in issue has been proved by a preponderance of the evidence, the jury may, unless otherwise instructed, refer to the testimony or exhibits that you find to be worthy to be believed.8. If the evidence is equally balanced between the plaintiff and the defendants on any issue, then the plaintiff has failed to meet her burden of proof and your verdict must be for the defendants. |
| (: | (NY PJI 1: |
| 23).9. If the plaintiff proves that the defendants committed malpractice, but fail to prove that such malpractice was the proximate cause of the plaintiffs injuries, then your verdict must be for the defendants. If you find that the defendants deviated from accepted medical practice but also find that she did not cause the injuries alleged, then your verdict must be for the defendants. (Dorsey v. Knickerbocker Hospital, 26 A.D.2d 541, 271 N.Y.S.2d 727 (1st Dept. 1966)).10. Two or more causes:When there are two or more possible causes of an injury, one or more of which the defendants is not responsible for, the plaintiff has failed to meet her burden of proof and your verdict must be for the defendants. (Benson v. Dean, 232 N.Y. 52 (1921); Grant v. Pennsylvania & N.Y. Canal & R. Co., 133 N.Y. 657 (1892); Yaggle v. Allen, 24 A.D. 594, 48 N.Y.S. 827 (3d Dep't. 1898)).11. Results and hindsight:A deviation or departure from good and accepted medical practice cannot be presumed from the result, nor may it be determined on the basis of hindsight, guess work or speculation. (Garcia v. Nyack Hospital, 49 A.D.2d 937, 373 N.Y.S.2d 879 (2nd Dep't. 1975); Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dept. | 23).9. If the plaintiff proves that the defendants committed malpractice, but fail to prove that such malpractice was the proximate cause of the plaintiffs injuries, then your verdict must be for the defendants. If you find that the defendants deviated from accepted medical practice but also find that she did not cause the injuries alleged, then your verdict must be for the defendants. (Dorsey v. Knickerbocker Hospital, 26 A.D.2d 541, 271 N.Y.S.2d 727 (1st Dept. 1966)).10. Two or more causes:When there are two or more possible causes of an injury, one or more of which the defendants is not responsible for, the plaintiff has failed to meet her burden of proof and your verdict must be for the defendants. (Benson v. Dean, 232 N.Y. 52 (1921); Grant v. Pennsylvania & N.Y. Canal & R. Co., 133 N.Y. 657 (1892); Yaggle v. Allen, 24 A.D. 594, 48 N.Y.S. 827 (3d Dep't. 1898)).11. Results and hindsight:A deviation or departure from good and accepted medical practice cannot be presumed from the result, nor may it be determined on the basis of hindsight, guess work or speculation. (Garcia v. Nyack Hospital, 49 A.D.2d 937, 373 N.Y.S.2d 879 (2nd Dep't. 1975); Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 (1st Dept. |
| 1976)).12. . | 1976)).12. PJI 2:70. |
| Proximate cause—In | Proximate cause—In |
| general13. . | general13. PJI 1:90. |
| GeneralInstruction—Expert | GeneralInstruction—Expert |
| Witness14. | Witness14. PJI 2:36 |
| and | and |
| . | 2:36.1. |
| Comparative | Comparative |
| Fault15. . | Fault15. PJI 1:27. |
| Exclude Sympathy; 1:91. General Instruction—Interested | Exclude Sympathy; 1:91. General Instruction—Interested |
| Witness—Generally16. . | Witness—Generally16. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict17. . | Verdict17. PJI 2:275. |
| Comparative Fault—Apportionment of Fault Between Defendants18. Necessity to decide whether baby born alive:Before you can determine damages, you must first decide whether the infant, Nikita Kulynska, was born alive. When making this decision you cannot rely on your emotions, rather, you must rely on the facts that you heard in Court and prior case law. When determining if a child was born alive, you must consider facts such as the creation of a separate medical record for the child, whether there was a birth certificate, and whether there was a separate death certificate. Further, you must consider whether there were any signs of life, such as a heartbeat, after the child was delivered. New York State law does not require that signs of life are separate from mechanical life support. The existence of a heartbeat is enough to signify life. (Levin v.New York City Health and Hospitals Corp., 119 A.D.3d 480, 990 N.Y.S.2d 490 (1st Dept. 2014); New York Public Health Law § 4130(1)).19. I charge you that you may not consider the issue of damages until you have determined that liability exists against the defendants. You are not to discuss damages unless you complete your discussion on the issue of liability and determine that liability exists. If at the completion of your discussion of liability you conclude that no liability exists, you are to return a verdict for the defendants without entering into any discussion on the issue of | Comparative Fault—Apportionment of Fault Between Defendants18. Necessity to decide whether baby born alive:Before you can determine damages, you must first decide whether the infant, Nikita Kulynska, was born alive. When making this decision you cannot rely on your emotions, rather, you must rely on the facts that you heard in Court and prior case law. When determining if a child was born alive, you must consider facts such as the creation of a separate medical record for the child, whether there was a birth certificate, and whether there was a separate death certificate. Further, you must consider whether there were any signs of life, such as a heartbeat, after the child was delivered. New York State law does not require that signs of life are separate from mechanical life support. The existence of a heartbeat is enough to signify life. (Levin v.New York City Health and Hospitals Corp., 119 A.D.3d 480, 990 N.Y.S.2d 490 (1st Dept. 2014); New York Public Health Law § 4130(1)).19. I charge you that you may not consider the issue of damages until you have determined that liability exists against the defendants. You are not to discuss damages unless you complete your discussion on the issue of liability and determine that liability exists. If at the completion of your discussion of liability you conclude that no liability exists, you are to return a verdict for the defendants without entering into any discussion on the issue of |
| damages.20. . | damages.20. PJI 2:277. |
| Damages—In General21–23. Damages21. Should you find that the plaintiffs decedent was born alive, you must decide the infant's damages, if any. As you have heard, the plaintiff, Olga Kulynska, is the representative of the estate of Nikita Kulynska. Olga Kulynska makes two claims: the first claim seeks damages on behalf of Nikita Kulynska's distributees resulting from the death of Nikita Kulynska and the second claims seeks damages for the injuries suffered and losses sustained, if any, by Nikita Kulynska before he died. You must separately consider each of these claims.As to the first claim, damages are the amount that you find to be fair and just compensation for the monetary losses resulting from Nikita Kulynska's death to each of the persons for whom this claim is brought.The law limits damages resulting from Nikita Kulynska's death to monetary injuries. You may not consider or make any award for sorrow, mental anguish, injury to feelings, or for loss of companionship. You must decide the monetary losses to the distributees caused by Nikita Kulynska's death on February 15, 2008.You will make a separate award for those reasonable expenses for Nikita Kulynska's funeral and burial lot and those that were for medical aid, nursing and other care required to treat Nikita Kulynska's injuries.(based on | Damages—In General21–23. Damages21. Should you find that the plaintiffs decedent was born alive, you must decide the infant's damages, if any. As you have heard, the plaintiff, Olga Kulynska, is the representative of the estate of Nikita Kulynska. Olga Kulynska makes two claims: the first claim seeks damages on behalf of Nikita Kulynska's distributees resulting from the death of Nikita Kulynska and the second claims seeks damages for the injuries suffered and losses sustained, if any, by Nikita Kulynska before he died. You must separately consider each of these claims.As to the first claim, damages are the amount that you find to be fair and just compensation for the monetary losses resulting from Nikita Kulynska's death to each of the persons for whom this claim is brought.The law limits damages resulting from Nikita Kulynska's death to monetary injuries. You may not consider or make any award for sorrow, mental anguish, injury to feelings, or for loss of companionship. You must decide the monetary losses to the distributees caused by Nikita Kulynska's death on February 15, 2008.You will make a separate award for those reasonable expenses for Nikita Kulynska's funeral and burial lot and those that were for medical aid, nursing and other care required to treat Nikita Kulynska's injuries.(based on |
| ).22. If | NY PJI 2:320).22. If |
| you find that the plaintiffs decedent was stillborn, you must also include in your verdict damages for any mental suffering, emotional and psychological injury caused by the wrongful act of the defendant. (based on | you find that the plaintiffs decedent was stillborn, you must also include in your verdict damages for any mental suffering, emotional and psychological injury caused by the wrongful act of the defendant. (based on |
| ).23. If | NY PJI 2:284).23. If |
| your verdict is in favor of plaintiff, plaintiff will not be required to pay income taxes on the award and you must not add to or subtract from the award any amount on account of income taxes. | your verdict is in favor of plaintiff, plaintiff will not be required to pay income taxes on the award and you must not add to or subtract from the award any amount on account of income taxes. |
| ().24. 1:28. | (NY PJI 2:280.2).24. 1:28. |
| ConclusionC. Case Documents Available on | ConclusionC. Case Documents Available on |
| Westlaw | Westlaw2009 WL 10662287 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Memorandum of | (Trial Motion, Memorandum and Affidavit), Memorandum of |
| Law | Law2009 WL 10662289 (N.Y.Sup.) |
| (Trial Pleading), | (Trial Pleading), |
| Complaint | Complaint2012 WL 12919620 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), | (Trial Motion, Memorandum and Affidavit), |
| Affirmation | Affirmation2014 WL 12640114 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Affirmation in | (Trial Motion, Memorandum and Affidavit), Affirmation in |
| Opposition | Opposition2015 WL 12916220 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Reply Affirmation in Further Support of Defendant's Motion for Summary | (Trial Motion, Memorandum and Affidavit), Reply Affirmation in Further Support of Defendant's Motion for Summary |
| Judgment | Judgment2015 WL 12916221 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Reply | (Trial Motion, Memorandum and Affidavit), Reply |
| Affirmation | Affirmation2016 WL 7667444 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Plaintiff's Memorandum of | (Trial Motion, Memorandum and Affidavit), Plaintiff's Memorandum of |
| Law | Law2016 WL 7667442 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Memorandum of Law in Support of Defendant's Motion in | (Trial Motion, Memorandum and Affidavit), Memorandum of Law in Support of Defendant's Motion in |
| Limine | Limine2016 WL 7667445 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), Memorandum of Law in Support of Defendants' | (Trial Motion, Memorandum and Affidavit), Memorandum of Law in Support of Defendants' |
| Reply | Reply2016 WL 7667443 (N.Y.Sup.) |
| (Jury Instruction), Proposed Request to | (Jury Instruction), Proposed Request to |
| Charge | Charge2016 WL 7667415 (N.Y.Sup.) |
| (Verdict, Agreement and Settlement), Verdict agreement and | (Verdict, Agreement and Settlement), Verdict agreement and |
| settlement | settlement2016 WL 7734026 (N.Y.Sup.) |
| (Trial Order), Trial OrderD. Research References1.Key | (Trial Order), Trial OrderD. Research References1.Key |
| Numbers 2.Westlaw | NumbersHealth 6842.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents—Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of TortsAppendix 5A Outline of PJI Comments for MalpracticeMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Malpractice, on the following specific | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents—Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of TortsAppendix 5A Outline of PJI Comments for MalpracticeMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Malpractice, on the following specific |
| topics:Malpractice | topics:•Malpractice |
| Statute of | Statute of |
| LimitationsPhysician MalpracticeAttorney MalpracticeNegligence | Limitations•Physician Malpractice•Attorney Malpractice•Negligence |
| of HospitalMalpractice Statute of LimitationsComment preceding | of HospitalMalpractice Statute of LimitationsComment preceding |
| (Vol. | PJI 2:149(Vol. |
| 1B, | 1B, |
| NY PJI, at 1 |
| (2018))I.Medical MalpracticeA.General RuleB.Tolls1.Infancy2.Insanity3.Continuous Treatment4.Discovery of Condition—Foreign ObjectsC.Informed ConsentD.Circumventing the Statute of Limitations1.Fraud and Estoppel2.Contract Theory of Liability3.Other Alternative TheoriesII.Malpractice by Attorneys, Architects and Other ProfessionalsA.Attorneys' MalpracticeB.Architect's MalpracticeC.Accountants' MalpracticeIII.Burden of ProofIV.Disposition of Statute of Limitations DefensePhysician MalpracticeComment following | (2018))I.Medical MalpracticeA.General RuleB.Tolls1.Infancy2.Insanity3.Continuous Treatment4.Discovery of Condition—Foreign ObjectsC.Informed ConsentD.Circumventing the Statute of Limitations1.Fraud and Estoppel2.Contract Theory of Liability3.Other Alternative TheoriesII.Malpractice by Attorneys, Architects and Other ProfessionalsA.Attorneys' MalpracticeB.Architect's MalpracticeC.Accountants' MalpracticeIII.Burden of ProofIV.Disposition of Statute of Limitations DefensePhysician MalpracticeComment following |
| (Vol. | PJI 2:150(Vol. |
| 1B, NY PJI, at 45 (2018))I.Elements GenerallyII.Standard of CareA.GenerallyB.Best JudgmentC.Error in JudgmentD.The Locality RuleIII.Persons Who May Be LiableIV.Physician-Patient RelationshipA. Gratuitously Provided ServicesB. Physician's Undertaking to Provider ServicesC. Medical Examinations Conducted on Referral of Employers and Insurance CarriersD. Relationship Arising From Physician's Providing Medical Advice or Consultation ServicesV.Persons to Whom Duty of Care is OwedA.Duty to General PublicB.Duty to family members and Others in Contact with PatientVI.Malpractice Relating to Fetuses and NewbornsA.“Wrongful Life” and “Wrongful Birth” ClaimsB.Birth DefectsC.Emotional InjuryD.SterilityE.In Utero Injuries1.Accrual of Cause of Action for In Utero InjuryF.Pre-conception TortsVII.Mental Health ProfessionalsA.Duty to Persons Other Than PatientB.Error in JudgmentVIII.Negligence in Prescribing MedicationIX.Other Specific Instances of MalpracticeX.Expert Opinion EvidenceA.When Expert Opinion is RequiredB.Who May Testify As an ExpertC.Required Content of Expert TestimonyXI.Res Ipsa LoquiturXII.CausationA.Loss of ChanceB.Delayed DiagnosisC.Effect of Patient's ConductXIII.Liability for Acts and Omissions of AnotherXIV.Liability of Employers Providing Medical CareXV.Malpractice Actions Against Governmental EntitiesXVI.Liability of Health InsurersXVII.Bars to Malpractice RecoveryXVIII.Liability for Breaches of ConfidentialityXIX.Collateral Source RuleXX.Punitive DamagesXXI.Actions for Birth-Related Neurological InjuriesNegligence of HospitalComment following | 1B, NY PJI, at 45 (2018))I.Elements GenerallyII.Standard of CareA.GenerallyB.Best JudgmentC.Error in JudgmentD.The Locality RuleIII.Persons Who May Be LiableIV.Physician-Patient RelationshipA. Gratuitously Provided ServicesB. Physician's Undertaking to Provider ServicesC. Medical Examinations Conducted on Referral of Employers and Insurance CarriersD. Relationship Arising From Physician's Providing Medical Advice or Consultation ServicesV.Persons to Whom Duty of Care is OwedA.Duty to General PublicB.Duty to family members and Others in Contact with PatientVI.Malpractice Relating to Fetuses and NewbornsA.“Wrongful Life” and “Wrongful Birth” ClaimsB.Birth DefectsC.Emotional InjuryD.SterilityE.In Utero Injuries1.Accrual of Cause of Action for In Utero InjuryF.Pre-conception TortsVII.Mental Health ProfessionalsA.Duty to Persons Other Than PatientB.Error in JudgmentVIII.Negligence in Prescribing MedicationIX.Other Specific Instances of MalpracticeX.Expert Opinion EvidenceA.When Expert Opinion is RequiredB.Who May Testify As an ExpertC.Required Content of Expert TestimonyXI.Res Ipsa LoquiturXII.CausationA.Loss of ChanceB.Delayed DiagnosisC.Effect of Patient's ConductXIII.Liability for Acts and Omissions of AnotherXIV.Liability of Employers Providing Medical CareXV.Malpractice Actions Against Governmental EntitiesXVI.Liability of Health InsurersXVII.Bars to Malpractice RecoveryXVIII.Liability for Breaches of ConfidentialityXIX.Collateral Source RuleXX.Punitive DamagesXXI.Actions for Birth-Related Neurological InjuriesNegligence of HospitalComment following |
| (Vol. | PJI 2:151(Vol. |
| 1B, NY PJI, at 107 (2018))1.The Hospital's Duty of Reasonable Care2.The Hospital's Liability for Acts of Employees3.Hospital's Liability for Negligent Hiring4.Emergency Medical Treatment5.General Considerations as to Hospital Liability6.Residential Health Care FacilitiesAttorney MalpracticeComment following | 1B, NY PJI, at 107 (2018))1.The Hospital's Duty of Reasonable Care2.The Hospital's Liability for Acts of Employees3.Hospital's Liability for Negligent Hiring4.Emergency Medical Treatment5.General Considerations as to Hospital Liability6.Residential Health Care FacilitiesAttorney MalpracticeComment following |
| (Vol. | PJI 2:152(Vol. |
| 1B, NY PJI, at 143 (2018))I.In GeneralII.Attorney-Client RelationshipA.In GeneralB.Attorney's Liability to Third PersonsIII.Scope of Attorney's DutyIV.Standard of CareA. In GeneralB. Effect of Disciplinary and Ethical RulesC. Specific Duties of CareD. Specific Instances in Which Attorney Liable or Potentially Liable for MalpracticeE. Specific Instances in Which Attorney Not Liable or Potentially Liable for MalpracticeV.CausationVI.Client's Actions Affecting Attorney's Malpractice LiabilityVII.Liability for Malpractice of AnotherVIII.Negligent Representation of Criminal DefendantsIX.DamagesX.Malpractice Distinguished from Breach of ContractXI.Tort Claims Against Attorneys Other Than MalpracticeXII.Other ConsiderationsChapter 6Premises LiabilityA. Finding The Applicable Law and Instructions§ 6:1NY PJI TablesB. Illustrative Cases§ 6:2Premises liability/Stepping into hole containing hot water; scalding/One plaintiff, one defendant§ 6:3Premises liability/Window shutting unexpectedly; contusion of shoulder and back; rotator cuff tear/One plaintiff, two defendants§ 6:4Premises liability/Lead paint poisoning/Two plaintiffs, two defendants§ 6:5Premises liability/Construction ramp collapse; crushed finger/One plaintiff, two defendants§ 6:6Premises liability/Slip and fall/roadway construction; alleged improper maintenance of roadway§ 6:7Premises liability/Loose step; muscle ruptures/One plaintiff, two defendants§ 6:8Premises liability/Failure to cover wheelchair ramp; nerve injury/One plaintiff, two defendants§ 6:9Premises liability/Flooded elevator; knee cartilage injury/Two plaintiffs, two named defendants, plus Does 1–10§ 6:10Premises liability/Bicycle accident; unspecified injuries and mental anguish/Two plaintiffs, two defendants§ 6:11Premises liability/Unexpected drop in roadway; back injury/One plaintiff, two defendants (plus third-party plaintiff and defendant)§ 6:12Premises liability/Trip and fall; personal injuries/Two plaintiffs, two defendants§ 6:13Premises liability/Flash fire; burns/Two plaintiffs, one defendant; one third-party plaintiff, two third-party defendants§ 6:14Premises liability/stairway of restaurant/trip and fall/one plaintiff, one defendant§ 6:15Premises liability: escalator malfunctionAppendix 6A. Outline of PJI Comments for Premises LiabilityKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 6:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Premises Liability, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Liability for Condition or Use of Land | 1B, NY PJI, at 143 (2018))I.In GeneralII.Attorney-Client RelationshipA.In GeneralB.Attorney's Liability to Third PersonsIII.Scope of Attorney's DutyIV.Standard of CareA. In GeneralB. Effect of Disciplinary and Ethical RulesC. Specific Duties of CareD. Specific Instances in Which Attorney Liable or Potentially Liable for MalpracticeE. Specific Instances in Which Attorney Not Liable or Potentially Liable for MalpracticeV.CausationVI.Client's Actions Affecting Attorney's Malpractice LiabilityVII.Liability for Malpractice of AnotherVIII.Negligent Representation of Criminal DefendantsIX.DamagesX.Malpractice Distinguished from Breach of ContractXI.Tort Claims Against Attorneys Other Than MalpracticeXII.Other ConsiderationsChapter 6Premises LiabilityA. Finding The Applicable Law and Instructions§ 6:1NY PJI TablesB. Illustrative Cases§ 6:2Premises liability/Stepping into hole containing hot water; scalding/One plaintiff, one defendant§ 6:3Premises liability/Window shutting unexpectedly; contusion of shoulder and back; rotator cuff tear/One plaintiff, two defendants§ 6:4Premises liability/Lead paint poisoning/Two plaintiffs, two defendants§ 6:5Premises liability/Construction ramp collapse; crushed finger/One plaintiff, two defendants§ 6:6Premises liability/Slip and fall/roadway construction; alleged improper maintenance of roadway§ 6:7Premises liability/Loose step; muscle ruptures/One plaintiff, two defendants§ 6:8Premises liability/Failure to cover wheelchair ramp; nerve injury/One plaintiff, two defendants§ 6:9Premises liability/Flooded elevator; knee cartilage injury/Two plaintiffs, two named defendants, plus Does 1–10§ 6:10Premises liability/Bicycle accident; unspecified injuries and mental anguish/Two plaintiffs, two defendants§ 6:11Premises liability/Unexpected drop in roadway; back injury/One plaintiff, two defendants (plus third-party plaintiff and defendant)§ 6:12Premises liability/Trip and fall; personal injuries/Two plaintiffs, two defendants§ 6:13Premises liability/Flash fire; burns/Two plaintiffs, one defendant; one third-party plaintiff, two third-party defendants§ 6:14Premises liability/stairway of restaurant/trip and fall/one plaintiff, one defendant§ 6:15Premises liability: escalator malfunctionAppendix 6A. Outline of PJI Comments for Premises LiabilityKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 6:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Premises Liability, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Liability for Condition or Use of Land |
| [ | [PJI 2:90 |
| to | to |
| ](NY | 2:118](NY |
| PJI Volume 1A)[“****” = see Table of Contents for detailed PJI Comment]A.To Persons on the Land ****1.Possessor's Liability [2:90–2:91]Standard of Care [2:90–2:90.3]****Statutory Limitation on Liability — Owner or Possessor of Undeveloped Land [2:90A]Unsafe Condition — Foreign Substances — Slip and Fall Cases [2:91]2.Lessor's Liability [2:100–2:106]Premises Demised for Private Use [2:100]Premises Demised as a Place for Public Assembly [2:101]Premises Over Which Control Retained [2:105]Under Covenant to Repair [2:106]3.Vendor's Liability [2:108]B.To Persons Outside the Land1.Possessor's LiabilityGenerally [2:110]Liability to Persons on SidewalkSpecial Use [2:111]Snow and Ice [2:111A–2:111A.1]Abnormally Dangerous Conduct [2:112–2:112.1]****Lateral Support [2:113]For Conduct of Others [2:114]2.Lessor's Liability [2:116]3.Vendor's Liability [2:118]Historical Revision Notes:In 2002, | PJI Volume 1A)[“****” = see Table of Contents for detailed PJI Comment]A.To Persons on the Land ****1.Possessor's Liability [2:90–2:91]Standard of Care [2:90–2:90.3]****Statutory Limitation on Liability — Owner or Possessor of Undeveloped Land [2:90A]Unsafe Condition — Foreign Substances — Slip and Fall Cases [2:91]2.Lessor's Liability [2:100–2:106]Premises Demised for Private Use [2:100]Premises Demised as a Place for Public Assembly [2:101]Premises Over Which Control Retained [2:105]Under Covenant to Repair [2:106]3.Vendor's Liability [2:108]B.To Persons Outside the Land1.Possessor's LiabilityGenerally [2:110]Liability to Persons on SidewalkSpecial Use [2:111]Snow and Ice [2:111A–2:111A.1]Abnormally Dangerous Conduct [2:112–2:112.1]****Lateral Support [2:113]For Conduct of Others [2:114]2.Lessor's Liability [2:116]3.Vendor's Liability [2:118]Historical Revision Notes:In 2002, |
| PJI 2:111A |
| was revised.In 2007, | was revised.In 2007, |
| PJI 2:111 |
| was revised.In 2008, | was revised.In 2008, |
| PJI 2:112 |
| was revised.In 2011, | was revised.In 2011, |
| PJI 2:90 |
| and | and |
| 2:91 |
| were revised, and | were revised, and |
| , , | PJI 2:90.1, 2:90.2, |
| and | and |
| 2:90.3 |
| were added.B. Illustrative Cases§ 6:2 Premises liability/Stepping into hole containing hot water; scalding/One plaintiff, one defendantA. BackgroundType of Case: Premises liabilityType of Injury: ScaldingCase Name: Sharipzhan Mukhutdinov, Plaintiff, v. Edward R. Finch, Jr., DefendantCourt: Supreme Court of New York, New York CountyJudge: Helen E. Freedman,Docket Number: 127807/02Verdict Date: November 2004Outcome: Verdict for Plaintiff. Defendant found 80% liable, Plaintiff 20%. Verdict affirmed on appeal.Brief Summary of Facts: Boiler repairman sues premises owner for scalding injuries sustained when he stepped into sump hole containing hot water. Defendant contends that Plaintiff, a Russian, and his co-employee, who speaks Spanish, were warned; Plaintiff testifies, with the aid of a Russian interpreter, that he could communicate with his co-employee in English and that neither was warned about the hole. Appeals court upholds verdict against Defendant's contention that unavailability of co-employee to testify called for adjournment; appeals court states that Defendant failed to use due diligence to obtain co-employee's cooperation.B. Jury Instructions Given by the | were added.B. Illustrative Cases§ 6:2 Premises liability/Stepping into hole containing hot water; scalding/One plaintiff, one defendantA. BackgroundType of Case: Premises liabilityType of Injury: ScaldingCase Name: Sharipzhan Mukhutdinov, Plaintiff, v. Edward R. Finch, Jr., DefendantCourt: Supreme Court of New York, New York CountyJudge: Helen E. Freedman,Docket Number: 127807/02Verdict Date: November 2004Outcome: Verdict for Plaintiff. Defendant found 80% liable, Plaintiff 20%. Verdict affirmed on appeal.Brief Summary of Facts: Boiler repairman sues premises owner for scalding injuries sustained when he stepped into sump hole containing hot water. Defendant contends that Plaintiff, a Russian, and his co-employee, who speaks Spanish, were warned; Plaintiff testifies, with the aid of a Russian interpreter, that he could communicate with his co-employee in English and that neither was warned about the hole. Appeals court upholds verdict against Defendant's contention that unavailability of co-employee to testify called for adjournment; appeals court states that Defendant failed to use due diligence to obtain co-employee's cooperation.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles Stated / | Review Principles Stated / |
| . | PJI 1:24. |
| Return to Courtroom (Transcript pages 423 to 425—After sentence from PJI 1:21 about not accepting outside advice from anyone, the court adds, similar to | Return to Courtroom (Transcript pages 423 to 425—After sentence from PJI 1:21 about not accepting outside advice from anyone, the court adds, similar to |
| :)If | PJI 1:24:)If |
| you have a question about it, or if there's some disagreement or possible misunderstanding just write it out and you'll come back down here, we'll give you paper to do that, and I will clarify it for you.(In second paragraph, the court starts with:)Furthermore, you must not conclude from any of my rulings, from anything that I said during the trial, or any faces that I made, any remarks that I made, that I favor either party to this lawsuit. Also the fact that I asked a few questions did not mean anything. They were for purposes of clarification only and my questions were of no greater significance or maybe less significance than the questions of the lawyers.(After sentence about not drawing inferences from testimony stricken from the record, the court adds:)I don't remember any, but if there was any disregard it.(After “probability or improbability of the witness' testimony when considered in the light of all the other evidence in the case,” the court adds:)and, of course, common sense in | you have a question about it, or if there's some disagreement or possible misunderstanding just write it out and you'll come back down here, we'll give you paper to do that, and I will clarify it for you.(In second paragraph, the court starts with:)Furthermore, you must not conclude from any of my rulings, from anything that I said during the trial, or any faces that I made, any remarks that I made, that I favor either party to this lawsuit. Also the fact that I asked a few questions did not mean anything. They were for purposes of clarification only and my questions were of no greater significance or maybe less significance than the questions of the lawyers.(After sentence about not drawing inferences from testimony stricken from the record, the court adds:)I don't remember any, but if there was any disregard it.(After “probability or improbability of the witness' testimony when considered in the light of all the other evidence in the case,” the court adds:)and, of course, common sense in |
| general.3. . | general.3. PJI 1:91. |
| General Instruction—Interested Witness—Generally (Transcript page 425—The court adds names of parties, Mr. Mukhutdinov and Mr. | General Instruction—Interested Witness—Generally (Transcript page 425—The court adds names of parties, Mr. Mukhutdinov and Mr. |
| Finch.)4. . | Finch.)4. PJI 1:90. |
| General Instruction—Expert Witness (Transcript pages 426 to 427—The court specifies the experts who were called:)The experts were two plastic surgeons, Dr. Cooper and Dr. Levandusky. We also had Dr. Aluri who is mostly a fact witness but gave a few expert opinions as to what was meant or some clarifications of what was meant in the hospital record. Finally, we had Mr. Pomeranz, who was a civil engineer.(After stating that “You may reject the expert's opinion if you find the facts to be different from those which formed the basis of the opinion,” the court adds:)in other words, if you find that some of the assumptions were not | General Instruction—Expert Witness (Transcript pages 426 to 427—The court specifies the experts who were called:)The experts were two plastic surgeons, Dr. Cooper and Dr. Levandusky. We also had Dr. Aluri who is mostly a fact witness but gave a few expert opinions as to what was meant or some clarifications of what was meant in the hospital record. Finally, we had Mr. Pomeranz, who was a civil engineer.(After stating that “You may reject the expert's opinion if you find the facts to be different from those which formed the basis of the opinion,” the court adds:)in other words, if you find that some of the assumptions were not |
| correct.5. . | correct.5. PJI 1:92. |
| General Instruction—Interested Witness—Employee of Party (Transcript pages 427 to 428—The court adds that this instruction concerns Mr. Alonzo, and adds to the pattern instruction:)Also his role, you can consider his role in the whole case, and, members of the jury I tell you as a matter of law that if you find that he did anything wrong, and we'll get to that, the owner is responsible for the actions of his employees if they are done in the course of his employment, and, of course, that's what the issue is here. There's no issue that Mr. Alonzo's actions were all done in the course of his | General Instruction—Interested Witness—Employee of Party (Transcript pages 427 to 428—The court adds that this instruction concerns Mr. Alonzo, and adds to the pattern instruction:)Also his role, you can consider his role in the whole case, and, members of the jury I tell you as a matter of law that if you find that he did anything wrong, and we'll get to that, the owner is responsible for the actions of his employees if they are done in the course of his employment, and, of course, that's what the issue is here. There's no issue that Mr. Alonzo's actions were all done in the course of his |
| employment.6. . | employment.6. PJI 1:22. |
| Falsus in Uno (Transcript page 428: Instead of “unbelievable,” the court says “unworthy of | Falsus in Uno (Transcript page 428: Instead of “unbelievable,” the court says “unworthy of |
| belief.”)7. . | belief.”)7. PJI 1:23. |
| Burden of Proof (Transcript pages 428 to 429—The court prefaces this instruction with:)As to the first two questions, to 1-A and B, 2-A and B, the basic liability questions. . .(After delivering the pattern instruction, the court adds a balancing scale analogy:)As to those first two, 1-A and B, and 2-A and B, members of the jury, I always use what I call the balancing scale analogy. It's in your mind's eye. Picture one of those balance scales with the rod across and the chains coming down and the plate or the dish on the bottom, on the bottom of the balance scale. In your mind's eye, again, because it's not tangible, you put the plaintiff's evidence on one side, the defendant's evidence on the other side, and you do this with each question, and if it tips, the balance scale tips in favor of the plaintiff there's a greater part on the plaintiff's side and you find for the plaintiff. If it weighs evenly, if it's absolutely balanced, or tips in favor of the defendant, you'll find for the defendant on that issue.(The court describes burden of proof in a comparative negligence situation:)Now, as to Question 3, if you get to Question 3, which is what we call the comparative negligence question, that the burden shifts to the defendant. It is up to the defendant to show by a preponderance of the evidence that its claim that the plaintiff was negligent is true. So you'll just reverse it when you get to Question 3; the burden of proof | Burden of Proof (Transcript pages 428 to 429—The court prefaces this instruction with:)As to the first two questions, to 1-A and B, 2-A and B, the basic liability questions. . .(After delivering the pattern instruction, the court adds a balancing scale analogy:)As to those first two, 1-A and B, and 2-A and B, members of the jury, I always use what I call the balancing scale analogy. It's in your mind's eye. Picture one of those balance scales with the rod across and the chains coming down and the plate or the dish on the bottom, on the bottom of the balance scale. In your mind's eye, again, because it's not tangible, you put the plaintiff's evidence on one side, the defendant's evidence on the other side, and you do this with each question, and if it tips, the balance scale tips in favor of the plaintiff there's a greater part on the plaintiff's side and you find for the plaintiff. If it weighs evenly, if it's absolutely balanced, or tips in favor of the defendant, you'll find for the defendant on that issue.(The court describes burden of proof in a comparative negligence situation:)Now, as to Question 3, if you get to Question 3, which is what we call the comparative negligence question, that the burden shifts to the defendant. It is up to the defendant to show by a preponderance of the evidence that its claim that the plaintiff was negligent is true. So you'll just reverse it when you get to Question 3; the burden of proof |
| reverses.8. . | reverses.8. PJI 1:24. |
| Return to Courtroom (Transcript page 431—After delivering the pattern instruction, the court adds:)Members of the jury, we don't have a transcript so it would take a bit of time to find testimony, so please be as specific as you can if you need testimony read back, and this has not been a very long trial, but if you do need testimony read back, be very specific as to what you want, don't just say all of so and so's testimony, and let us know if you want both the direct and cross on that point as | Return to Courtroom (Transcript page 431—After delivering the pattern instruction, the court adds:)Members of the jury, we don't have a transcript so it would take a bit of time to find testimony, so please be as specific as you can if you need testimony read back, and this has not been a very long trial, but if you do need testimony read back, be very specific as to what you want, don't just say all of so and so's testimony, and let us know if you want both the direct and cross on that point as |
| well.9. . | well.9. PJI 1:25. |
| Consider Only Testimony and Exhibits (Transcript page 431—The court adds “deposition” before trial, as well as | Consider Only Testimony and Exhibits (Transcript page 431—The court adds “deposition” before trial, as well as |
| examination.)10. . | examination.)10. PJI 1:26. |
| Five-Sixths Verdict (Transcript page 432—The court adds, regarding the verdict sheet:)Members of the jury, you have that verdict sheet in front of you, and we'll go over this again, but whenever five of you agree on a yes or no, you may go on. You'll let me know whether it's a five-one or one-five or zero-six or six-zero verdict. If it is either one, five-one or one-five, the dissenting juror will sign his or her name in the spot given. Whenever five of you are in agreement you may proceed to the next question, and it need not be the same five as long as five of you are in | Five-Sixths Verdict (Transcript page 432—The court adds, regarding the verdict sheet:)Members of the jury, you have that verdict sheet in front of you, and we'll go over this again, but whenever five of you agree on a yes or no, you may go on. You'll let me know whether it's a five-one or one-five or zero-six or six-zero verdict. If it is either one, five-one or one-five, the dissenting juror will sign his or her name in the spot given. Whenever five of you are in agreement you may proceed to the next question, and it need not be the same five as long as five of you are in |
| agreement.11. . | agreement.11. PJI 1:27. |
| Exclude | Exclude |
| Sympathy12. . | Sympathy12. PJI 1:85. |
| General Instruction—Theory of Case (Transcript page 433—The court states:)Members of the jury, the basic theory of this case, and you can see by the questions, is that the defendant was | General Instruction—Theory of Case (Transcript page 433—The court states:)Members of the jury, the basic theory of this case, and you can see by the questions, is that the defendant was |
| negligent.13. . | negligent.13. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally14. . | Defined—Generally14. PJI 2:70. |
| Proximate Cause—In General (Transcript page 434—The court includes comparative fault | Proximate Cause—In General (Transcript page 434—The court includes comparative fault |
| language.)15. . | language.)15. PJI 1:85. |
| General Instruction—Theory of Case (Transcript page 434—The court states:)Members of the jury, again, the claims here were, one, that the premises was negligently maintained; and, two, and/or that the defendant was negligent because his super did not warn. So it's failure to maintain the premises and failure to warn that plaintiff claims were the causes of the | General Instruction—Theory of Case (Transcript page 434—The court states:)Members of the jury, again, the claims here were, one, that the premises was negligently maintained; and, two, and/or that the defendant was negligent because his super did not warn. So it's failure to maintain the premises and failure to warn that plaintiff claims were the causes of the |
| injury.16. . | injury.16. PJI 2:90. |
| Possessor's Liability for Condition or Use of Premises—Standard of Care (Transcript page 434 to 435—The court adds specifics as to whether the premises were reasonably safe:)Plaintiff claims that the premises were not in a reasonably safe condition because—excuse me I just want to get it right. I had it here a minute ago—defendant permitted the existence of a dangerous and hazardous condition in the boiler room, to wit, an open, uncovered, unlit, unmarked and/or unprotected hole containing hot, scalding water.The plaintiff also claims that defendant was careless and negligent in failing to give an adequate warning to plaintiff of the existence of the dangerous, hazardous and open hole. You heard the testimony of Mr. Pomeranz that it was dangerous because it didn't have the right kind of cover, because Mr. Pomeranz said that it was lighted—that the lighting was adequate if the lighting was on, but that because of the opacity there should have been some markers or something else to alert someone coming into the boiler room as to the existence of the sump pump hole.The defendant contends that the boiler room was safe in that it was adequately lighted on November 8, 2001 by two overhead fluorescent lighting fixtures above the boiler, that they were on and that the pit was lighted at the time of the accident.The defendant also claims that the super, Victor Alonzo, warned the plaintiff and his coworker, Marco Jarez, of the existence and location of the sump pit before plaintiff went into the room and had his accident.The defendant also says that the cover and configuration of the boiler room did not violate any rules or any code provisions and there were no violations imposed for that.(Transcript page 437—After discussing whether Plaintiff's presence should reasonably have been foreseen, The court adds:)I think that I'm not going to go further on that issue. We have a boiler repairman going into a boiler room.(Transcript page 437—After discussing the defendant's obligation to use care in correcting unsafe condition, the court adds:)that's assuming you find that there was something wrong with the way the premises was maintained(Transcript pages 437 to 438—The court adds a discussion of the alternative claim:)And that's the other claim, or the alternative claim, or that the plaintiff should have been warned and that he wasn't warned of the presence of the pit and the sump pump. Plaintiff claims he received no warning. Defendant said through Mr. Alonzo that he did warn Mr. Jarez and Mr. Mukhutdinov of the existence of the hole and where the sump pump was and that he had removed the cover in order to allow the sump pump to drain or the water in the boiler room to drain out.(Transcript page 438—The court omits “On the other hand, if you find ([add where appropriate:] that AB's presence was foreseeable and) that AB knew of the condition or would have been able to discover it by the use of reasonable care but that CD failed to correct the condition or take suitable precautions, you will find that CD was negligent.” The court instead adds:)Only part of that applies, of course, to this case.(Transcript page 438: Regarding a finding that the defendant's negligence was not a substantial factor, the court adds:)And, again, even though it's a small percentage it can be a substantial factor.(Transcript page 439—The court concludes the instruction with:)If you find that the defendant's negligence was a substantial factor in causing plaintiff's injury, you will then proceed to consider whether the plaintiff was negligent. Again, if you find no negligence or no substantial factors in the first two questions you will not go onto the third | Possessor's Liability for Condition or Use of Premises—Standard of Care (Transcript page 434 to 435—The court adds specifics as to whether the premises were reasonably safe:)Plaintiff claims that the premises were not in a reasonably safe condition because—excuse me I just want to get it right. I had it here a minute ago—defendant permitted the existence of a dangerous and hazardous condition in the boiler room, to wit, an open, uncovered, unlit, unmarked and/or unprotected hole containing hot, scalding water.The plaintiff also claims that defendant was careless and negligent in failing to give an adequate warning to plaintiff of the existence of the dangerous, hazardous and open hole. You heard the testimony of Mr. Pomeranz that it was dangerous because it didn't have the right kind of cover, because Mr. Pomeranz said that it was lighted—that the lighting was adequate if the lighting was on, but that because of the opacity there should have been some markers or something else to alert someone coming into the boiler room as to the existence of the sump pump hole.The defendant contends that the boiler room was safe in that it was adequately lighted on November 8, 2001 by two overhead fluorescent lighting fixtures above the boiler, that they were on and that the pit was lighted at the time of the accident.The defendant also claims that the super, Victor Alonzo, warned the plaintiff and his coworker, Marco Jarez, of the existence and location of the sump pit before plaintiff went into the room and had his accident.The defendant also says that the cover and configuration of the boiler room did not violate any rules or any code provisions and there were no violations imposed for that.(Transcript page 437—After discussing whether Plaintiff's presence should reasonably have been foreseen, The court adds:)I think that I'm not going to go further on that issue. We have a boiler repairman going into a boiler room.(Transcript page 437—After discussing the defendant's obligation to use care in correcting unsafe condition, the court adds:)that's assuming you find that there was something wrong with the way the premises was maintained(Transcript pages 437 to 438—The court adds a discussion of the alternative claim:)And that's the other claim, or the alternative claim, or that the plaintiff should have been warned and that he wasn't warned of the presence of the pit and the sump pump. Plaintiff claims he received no warning. Defendant said through Mr. Alonzo that he did warn Mr. Jarez and Mr. Mukhutdinov of the existence of the hole and where the sump pump was and that he had removed the cover in order to allow the sump pump to drain or the water in the boiler room to drain out.(Transcript page 438—The court omits “On the other hand, if you find ([add where appropriate:] that AB's presence was foreseeable and) that AB knew of the condition or would have been able to discover it by the use of reasonable care but that CD failed to correct the condition or take suitable precautions, you will find that CD was negligent.” The court instead adds:)Only part of that applies, of course, to this case.(Transcript page 438: Regarding a finding that the defendant's negligence was not a substantial factor, the court adds:)And, again, even though it's a small percentage it can be a substantial factor.(Transcript page 439—The court concludes the instruction with:)If you find that the defendant's negligence was a substantial factor in causing plaintiff's injury, you will then proceed to consider whether the plaintiff was negligent. Again, if you find no negligence or no substantial factors in the first two questions you will not go onto the third |
| question.17. . | question.17. PJI 2:36. |
| Comparative Fault (Transcript page 439—The court delivers the first two paragraphs of the pattern instruction, ending the second paragraph with:)you should go no further and then you will proceed to deal with the issues of damages. My charge to you on the law of damages—either way, you'll consider the issue of damages. If you get to Question 3, then you will also go to Question | Comparative Fault (Transcript page 439—The court delivers the first two paragraphs of the pattern instruction, ending the second paragraph with:)you should go no further and then you will proceed to deal with the issues of damages. My charge to you on the law of damages—either way, you'll consider the issue of damages. If you get to Question 3, then you will also go to Question |
| 4.18. . | 4.18. PJI 2:277. |
| Damages—General (Transcript page 440—The court specifies that Mr. Mukhutdinov's losses were sustained as a result of the injury on November 8, 2001.)19. No corresponding pattern instruction:Members of the jury, I'm not going to review what the claims are that you heard. He was in the hospital, he had burns, second-degree burns, and that you heard about his description of the pain that he has suffered up until | Damages—General (Transcript page 440—The court specifies that Mr. Mukhutdinov's losses were sustained as a result of the injury on November 8, 2001.)19. No corresponding pattern instruction:Members of the jury, I'm not going to review what the claims are that you heard. He was in the hospital, he had burns, second-degree burns, and that you heard about his description of the pain that he has suffered up until |
| now.20. . | now.20. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page 441—The court omits “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that (he, she) has suffered.” The court adds:)In this case, the lack of sleep or pain after a period of time, I think, or loss of sleep alleged claims here would constitute loss of enjoyment of life.(The court omits the second paragraph of the pattern | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (Transcript page 441—The court omits “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that (he, she) has suffered.” The court adds:)In this case, the lack of sleep or pain after a period of time, I think, or loss of sleep alleged claims here would constitute loss of enjoyment of life.(The court omits the second paragraph of the pattern |
| instruction.)21. . | instruction.)21. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (regarding income taxes)22. Transcript page 441: No corresponding pattern instruction, regarding workers' compensation lien:)However, there is something that we call a lien from workers' compensation and that will have to be returned. That is why we are giving you the issue of medical expenses and you will see that they were paid up until now by workers' comp. He did not pay them but he would be entitled to receive them if you find for the plaintiff because they would have to be | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (regarding income taxes)22. Transcript page 441: No corresponding pattern instruction, regarding workers' compensation lien:)However, there is something that we call a lien from workers' compensation and that will have to be returned. That is why we are giving you the issue of medical expenses and you will see that they were paid up until now by workers' comp. He did not pay them but he would be entitled to receive them if you find for the plaintiff because they would have to be |
| returned.23. . | returned.23. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 442—The court states the plaintiff's life expectancy:)The plaintiff has a life expectancy of, I think we said, 30.9 years. He is now 46. I guess that would mean to 77, but such a table, however, provides nothing more than a statistical average. It neither guarantees that he will live an additional 30.9 years or means that he will not live for a longer period.24. Transcript page 442 to 443: No corresponding pattern instruction, regarding expenses paid by workers' compensation:Again, I talk to you about medical expenses paid by Workers' Comp. At this time he would also be entitled to medical expenses if you find for the plaintiff and that is the reasonable amount of expenditures for medical services and medication, physician's charges, x-ray charges and all the other medical charges that were imposed upon him. There's been no evidence that there will be any future medical claims based on this, so it's limited to the past payment of medical | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 442—The court states the plaintiff's life expectancy:)The plaintiff has a life expectancy of, I think we said, 30.9 years. He is now 46. I guess that would mean to 77, but such a table, however, provides nothing more than a statistical average. It neither guarantees that he will live an additional 30.9 years or means that he will not live for a longer period.24. Transcript page 442 to 443: No corresponding pattern instruction, regarding expenses paid by workers' compensation:Again, I talk to you about medical expenses paid by Workers' Comp. At this time he would also be entitled to medical expenses if you find for the plaintiff and that is the reasonable amount of expenditures for medical services and medication, physician's charges, x-ray charges and all the other medical charges that were imposed upon him. There's been no evidence that there will be any future medical claims based on this, so it's limited to the past payment of medical |
| claims.25. . | claims.25. PJI 2:36. |
| Comparative Fault (Transcript page 443—Continuing comparative fault discussion, from Instruction 17:)Members of the jury, the next question you have, if you find yes as to Question 3 only, you will then apportion liability between the plaintiff and the defendant, and that's the last question and you will say what percentage of negligence are the part of the defendant, what was the percentage of negligence on the part of the plaintiff, and you can—I'm not going to detail what the possible negligence on the part of the plaintiff was. You've heard a summation of defense counsel on that, but if you find that there was what we call comparative negligence you will apportion it, and I don't think I need to say it to this jury, but the total must be 100 | Comparative Fault (Transcript page 443—Continuing comparative fault discussion, from Instruction 17:)Members of the jury, the next question you have, if you find yes as to Question 3 only, you will then apportion liability between the plaintiff and the defendant, and that's the last question and you will say what percentage of negligence are the part of the defendant, what was the percentage of negligence on the part of the plaintiff, and you can—I'm not going to detail what the possible negligence on the part of the plaintiff was. You've heard a summation of defense counsel on that, but if you find that there was what we call comparative negligence you will apportion it, and I don't think I need to say it to this jury, but the total must be 100 |
| percent.26. . Conclusion27. . | percent.26. PJI 1:28. Conclusion27. PJI 1:97. |
| General Instruction—Special Verdicts (Transcript page 445 to 447—The court reviews the verdict sheet:)I've kind of gone over the questions with you during the course of the charge, but just looking at your verdict sheets, let's go over them quickly again, and remember please let me know what the vote is as to each question, and if it's one-five or five-one, make sure that the dissenting juror signs his or her name.Question 1: Was the defendant negligent in the maintenance of his boiler room at 2174 Third Avenue on November 8, 2001? And that includes the issues of the lighting, the configuration, the type of grating, those are the issues in the maintenance of the boiler room.If yes, was that negligence a substantial factor in causing Mr. Mukhutdinov's injury on November 8, 2001? Yes, no. If it's one-five or five-one, again, the dissenting juror should sign his or her name. Again, it need not be the same five for you to proceed.Question 2-A: Was the defendant negligent in failing to adequately warn plaintiff? And, of course, it would be Mr. Alonzo's responsibility to do the warning since he was the person there. Was the defendant negligent in failing to adequately warn plaintiff of the existence or location of the hole in the boiler room?When I say “in failing,” that doesn't mean that he didn't do it. That word is to encompass in fact whether or not he did it as well.Again, if it's five-one or one-five, the dissenting juror will sign his or her name.And, B, if yes, was that negligence a substantial factor in causing Mr. Mukhutdinov's injuries on November 8, 2001?Now, if the answer to 1-A and B, or 2-A and B, either or, but it has to be A and B, is yes, proceed to Question 3. Otherwise report your verdict to the court.Question 3-A is the comparative negligence question: Was the plaintiff negligent in his actions in the boiler room on November 8, 2001?And, B, if yes, was that negligence a substantial factor in causing his injuries?Question 4: Set forth an amount, if any, that will fairly and adequately compensate plaintiff for the following: Past pain and suffering, future pain and suffering, and you have to give me the number of years for the future. It doesn't have to be his whole lifetime, it can be whatever you think is appropriate if you answer that question, and medical expenses. I didn't put a line for you to total it up, but I suggest you do so, and dissenting juror if there's any.If the answer to 3-A and B is yes only, you'll answer Question 5 and that's the apportionment question. Six of you will sign your name at the end of the verdict sheet on at least one of the verdict | General Instruction—Special Verdicts (Transcript page 445 to 447—The court reviews the verdict sheet:)I've kind of gone over the questions with you during the course of the charge, but just looking at your verdict sheets, let's go over them quickly again, and remember please let me know what the vote is as to each question, and if it's one-five or five-one, make sure that the dissenting juror signs his or her name.Question 1: Was the defendant negligent in the maintenance of his boiler room at 2174 Third Avenue on November 8, 2001? And that includes the issues of the lighting, the configuration, the type of grating, those are the issues in the maintenance of the boiler room.If yes, was that negligence a substantial factor in causing Mr. Mukhutdinov's injury on November 8, 2001? Yes, no. If it's one-five or five-one, again, the dissenting juror should sign his or her name. Again, it need not be the same five for you to proceed.Question 2-A: Was the defendant negligent in failing to adequately warn plaintiff? And, of course, it would be Mr. Alonzo's responsibility to do the warning since he was the person there. Was the defendant negligent in failing to adequately warn plaintiff of the existence or location of the hole in the boiler room?When I say “in failing,” that doesn't mean that he didn't do it. That word is to encompass in fact whether or not he did it as well.Again, if it's five-one or one-five, the dissenting juror will sign his or her name.And, B, if yes, was that negligence a substantial factor in causing Mr. Mukhutdinov's injuries on November 8, 2001?Now, if the answer to 1-A and B, or 2-A and B, either or, but it has to be A and B, is yes, proceed to Question 3. Otherwise report your verdict to the court.Question 3-A is the comparative negligence question: Was the plaintiff negligent in his actions in the boiler room on November 8, 2001?And, B, if yes, was that negligence a substantial factor in causing his injuries?Question 4: Set forth an amount, if any, that will fairly and adequately compensate plaintiff for the following: Past pain and suffering, future pain and suffering, and you have to give me the number of years for the future. It doesn't have to be his whole lifetime, it can be whatever you think is appropriate if you answer that question, and medical expenses. I didn't put a line for you to total it up, but I suggest you do so, and dissenting juror if there's any.If the answer to 3-A and B is yes only, you'll answer Question 5 and that's the apportionment question. Six of you will sign your name at the end of the verdict sheet on at least one of the verdict |
| sheets.28. . | sheets.28. PJI 1:29. |
| Alternate Jurors (Transcript page 447 to 448—The court uses its own language:)At this time assuming all six of you are feeling well, I'm going to excuse the alternates at this time. I'm very sorry you didn't get a chance to serve. You are excellent, conscientious jurors, but at this time I don't think there's any need for you to stay. I think the other six will be able to handle the case, so I'm going to thank you and suggest if you have anything in the jury room to go get it now.C. Case Documents Available on Westlaw1.On appeal: Mukhutdinov v. Finch, 27 A.D.3d 285, 813 N.Y.S.2d 59 (1st Dep't 2006)Trial Pleading (Verified Complaint), 2002 WL 34214921Jury Instruction, | Alternate Jurors (Transcript page 447 to 448—The court uses its own language:)At this time assuming all six of you are feeling well, I'm going to excuse the alternates at this time. I'm very sorry you didn't get a chance to serve. You are excellent, conscientious jurors, but at this time I don't think there's any need for you to stay. I think the other six will be able to handle the case, so I'm going to thank you and suggest if you have anything in the jury room to go get it now.C. Case Documents Available on Westlaw1.On appeal: Mukhutdinov v. Finch, 27 A.D.3d 285, 813 N.Y.S.2d 59 (1st Dep't 2006)Trial Pleading (Verified Complaint), 2002 WL 34214921Jury Instruction, |
| 2.Sample | 2002 WL 342149202.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersNegligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:3 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:3 Premises |
| liability/Window shutting unexpectedly; contusion of shoulder and back; rotator cuff tear/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Contusion of shoulder and back; rotator cuff tearCase Name: Lucrecia Mateo, Plaintiff, v. 83 Post Avenue Associates and Lemle and Wolff, Inc., DefendantsCourt: Supreme Court of New York, Bronx CountyJudge: Kenneth L. ThompsonDocket Number: 6890/99Verdict Date: April 4, 2003Outcome: $400,000. Affirmed on appeal.Brief Summary of Facts: Plaintiff brought suit seeking damages for personal injuries sustained as she looked out a window in the kitchen. The top part of the window apparently came down and hit her on the shoulders and neck. Plaintiff went to the emergency room, where she was diagnosed with contusions of the shoulder and back. Two years later, an MRI showed right moderate supraspinatus tendinosis or partial tear. The next year, she had arthroscopic surgery on her right shoulder to repair the rotator cuff tear.B. Jury Instructions Given by the | liability/Window shutting unexpectedly; contusion of shoulder and back; rotator cuff tear/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Contusion of shoulder and back; rotator cuff tearCase Name: Lucrecia Mateo, Plaintiff, v. 83 Post Avenue Associates and Lemle and Wolff, Inc., DefendantsCourt: Supreme Court of New York, Bronx CountyJudge: Kenneth L. ThompsonDocket Number: 6890/99Verdict Date: April 4, 2003Outcome: $400,000. Affirmed on appeal.Brief Summary of Facts: Plaintiff brought suit seeking damages for personal injuries sustained as she looked out a window in the kitchen. The top part of the window apparently came down and hit her on the shoulders and neck. Plaintiff went to the emergency room, where she was diagnosed with contusions of the shoulder and back. Two years later, an MRI showed right moderate supraspinatus tendinosis or partial tear. The next year, she had arthroscopic surgery on her right shoulder to repair the rotator cuff tear.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:25A. |
| Juror's Use of Professional Expertise (Transcript page 240—The court omits: “You may not consider or speculate on matters not in evidence or matters outside the | Juror's Use of Professional Expertise (Transcript page 240—The court omits: “You may not consider or speculate on matters not in evidence or matters outside the |
| case.”)8. . | case.”)8. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict9. . | Verdict9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy10. . | Sympathy10. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings11. . | Rulings11. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence12. . | Evidence12. PJI 1:41. |
| Weighing Testimony (Transcript page 243—Instead of “the manner in which the witness gives testimony on the stand, the opportunity that the witness had to observe the facts about which he or she testifies,” the court said:)the manner in which the witness had to observe the facts about which he or she | Weighing Testimony (Transcript page 243—Instead of “the manner in which the witness gives testimony on the stand, the opportunity that the witness had to observe the facts about which he or she testifies,” the court said:)the manner in which the witness had to observe the facts about which he or she |
| testifies.13. . | testifies.13. PJI 1:90. |
| General Instruction—Expert Witness (Transcript page 243—Specifying that Dr. Frank Carr was an expert in the field of | General Instruction—Expert Witness (Transcript page 243—Specifying that Dr. Frank Carr was an expert in the field of |
| medicine.)14. . | medicine.)14. PJI 1:91. |
| General Instruction—Interested Witness—Generally (Transcript pages 244 to 245—Specifying only Plaintiff, not Defendant, as having testified as an interested | General Instruction—Interested Witness—Generally (Transcript pages 244 to 245—Specifying only Plaintiff, not Defendant, as having testified as an interested |
| witness.)15. . | witness.)15. PJI 1:75. |
| General Instruction—Evidence—Failure to Produce Witness—In General (Transcript pages 245 to 246—Specifying witness who was not called in this case:)For example, in this case, the defendant did not call Dr. Stanley Soren, the doctor who examined the plaintiff on behalf of the defendant. The defendant has stated basically Dr. Soren was unavailable and could not be reached, obtained to come to court to give testimony on this stand. If you find this explanation is reasonable, then you should not consider the failure of the defendant to call Dr. Soren in evaluating the evidence. If however, you find this explanation is not a reason, one you may—although you're not required to conclude that the testimony of Dr. Soren would not have supported defendant's position on the question of plaintiff's injuries and would not contradict the evidence offered by the plaintiff on the question of injury, and you may, although you're not required to draw the strongest inference against the defendant on that question that opposing evidence | General Instruction—Evidence—Failure to Produce Witness—In General (Transcript pages 245 to 246—Specifying witness who was not called in this case:)For example, in this case, the defendant did not call Dr. Stanley Soren, the doctor who examined the plaintiff on behalf of the defendant. The defendant has stated basically Dr. Soren was unavailable and could not be reached, obtained to come to court to give testimony on this stand. If you find this explanation is reasonable, then you should not consider the failure of the defendant to call Dr. Soren in evaluating the evidence. If however, you find this explanation is not a reason, one you may—although you're not required to conclude that the testimony of Dr. Soren would not have supported defendant's position on the question of plaintiff's injuries and would not contradict the evidence offered by the plaintiff on the question of injury, and you may, although you're not required to draw the strongest inference against the defendant on that question that opposing evidence |
| presents.16. . | presents.16. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally17. . | Defined—Generally17. PJI 2:70. |
| Proximate Cause—In General (Transcript page 147—The court omits instruction regarding comparative fault and concurrent | Proximate Cause—In General (Transcript page 147—The court omits instruction regarding comparative fault and concurrent |
| causes.)18. . | causes.)18. PJI 2:36. |
| Comparative Fault (Transcript page 248—In the second paragraph of the instruction, the court's second sentence is a very shortened version of the pattern instruction:)If you find that the plaintiff was not negligent or if—that her negligence did not contribute to the causing of the accident, you should go no further in this regard.(Transcript pages 248 to 249—At the end of the instruction, the court provides examples:)For example, if you should find that the defendants and plaintiff were equally negligent you will report that each was 50 percent responsible. If you should find one part was more negligent than the other in causing the injury you would assign a higher percentage to that other and lower percentage to the other with the total equaling one hundred | Comparative Fault (Transcript page 248—In the second paragraph of the instruction, the court's second sentence is a very shortened version of the pattern instruction:)If you find that the plaintiff was not negligent or if—that her negligence did not contribute to the causing of the accident, you should go no further in this regard.(Transcript pages 248 to 249—At the end of the instruction, the court provides examples:)For example, if you should find that the defendants and plaintiff were equally negligent you will report that each was 50 percent responsible. If you should find one part was more negligent than the other in causing the injury you would assign a higher percentage to that other and lower percentage to the other with the total equaling one hundred |
| percent.19. . | percent.19. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different | General Instruction—Burden of Proof—When Burden Differs on Different |
| Issues20. . | Issues20. PJI 2:29. |
| Statutory Standard of Care—Ordinances or Regulations (Transcript pages 250 to 251—The court specifies code sections that the plaintiff contends were violated:)Plaintiff claims that the defendant's failed to comply with and thus violated the following statute. Building Code Section 27-127 Maintenance requirements. All buildings and all parts thereof shall be maintained in a safe condition.Building Code Section 27-128. Owner Responsibility. The owner shall be responsible at all times for the save maintenance of the building and its facilities.Housing maintenance Code Section 27-2005 Duty of owner. The owner of a multiple dwelling shall keep the premises in good repair. (B) The owner of a multiple dwelling in addition to duty impose by such owner by subdivision (A) of this section shall be responsible for complying with the compliance of this Court.Responsibility for the section 778 of the Municipal Dwelling. Every multiple dwelling included and every part thereof, and upon which is situated shall be kept in good repair. Owner shall be responsible for compliance with the provisions of this section, but the tenant shall also be liable if a violation is caused by his own willful act of negligence or that of any other member of his family or household or his guest. Any such persons who shall willfully violate or assist in violating any provisions of this section shall also be jointly subject to the civil penalties provided for section three | Statutory Standard of Care—Ordinances or Regulations (Transcript pages 250 to 251—The court specifies code sections that the plaintiff contends were violated:)Plaintiff claims that the defendant's failed to comply with and thus violated the following statute. Building Code Section 27-127 Maintenance requirements. All buildings and all parts thereof shall be maintained in a safe condition.Building Code Section 27-128. Owner Responsibility. The owner shall be responsible at all times for the save maintenance of the building and its facilities.Housing maintenance Code Section 27-2005 Duty of owner. The owner of a multiple dwelling shall keep the premises in good repair. (B) The owner of a multiple dwelling in addition to duty impose by such owner by subdivision (A) of this section shall be responsible for complying with the compliance of this Court.Responsibility for the section 778 of the Municipal Dwelling. Every multiple dwelling included and every part thereof, and upon which is situated shall be kept in good repair. Owner shall be responsible for compliance with the provisions of this section, but the tenant shall also be liable if a violation is caused by his own willful act of negligence or that of any other member of his family or household or his guest. Any such persons who shall willfully violate or assist in violating any provisions of this section shall also be jointly subject to the civil penalties provided for section three |
| 3034.21. . | 3034.21. PJI 2:90. |
| Possessor's Liability for Condition or Use of Premises—Standard of Care (Transcript page 252—The court specifies that the unsafe condition was:) the window in the kitchen was not repaired. Defendant contends that the disrepair or lack thereof for this window was not a cause for plaintiff's injuries.Author's Comment: This statement of defendant's contention — that the condition of the property “was not a cause for plaintiff's injuries” (emphasis added) — in the context of a charge on the standard of care may have the effect of communicating that the defendant has conceded a violation of the standard of care and that the only dispute concerns proximate cause. The pattern charge on liability, | Possessor's Liability for Condition or Use of Premises—Standard of Care (Transcript page 252—The court specifies that the unsafe condition was:) the window in the kitchen was not repaired. Defendant contends that the disrepair or lack thereof for this window was not a cause for plaintiff's injuries.Author's Comment: This statement of defendant's contention — that the condition of the property “was not a cause for plaintiff's injuries” (emphasis added) — in the context of a charge on the standard of care may have the effect of communicating that the defendant has conceded a violation of the standard of care and that the only dispute concerns proximate cause. The pattern charge on liability, |
| , | PJI 2:90, |
| expressly provides for the statement of the contentions of both sides, but an affirmative statement of defendant's contentions seems to be lacking. Further, the reader is cautioned that | expressly provides for the statement of the contentions of both sides, but an affirmative statement of defendant's contentions seems to be lacking. Further, the reader is cautioned that |
| PJI 2:90 |
| has been revised since this instruction was prepared.(The court omits: “In other words, what precautions, if any, would a reasonable and prudent person take under the circumstances?” The court often replaces the word “premises” with the word “property.” Optional paragraphs regarding trespassers and children are omitted. Note, however, that | has been revised since this instruction was prepared.(The court omits: “In other words, what precautions, if any, would a reasonable and prudent person take under the circumstances?” The court often replaces the word “premises” with the word “property.” Optional paragraphs regarding trespassers and children are omitted. Note, however, that |
| PJI 2:90 |
| has been revised.)(Transcript page 254—In paragraph on foreseeability, after “or to take other suitable precautions,” the court adds, in two places: “or to give adequate warning.”)(The court omits optional paragraph on failure to warn, and paragraph on open and obvious conditions.)(Transcript page 254—In the paragraph starting with, “If you find that plaintiff's presence was not foreseeable. . .,” after “took suitable precautions,” the court adds: “or gave plaintiff an adequate warning.” The court omits “On the other hand, if you find ([add where appropriate:] that AB's presence was foreseeable and) that AB knew of the condition or would have been able to discover it by the use of reasonable care but that CD failed to correct the condition or take suitable precautions, you will find that CD was negligent.”)(Transcript page 255—The final sentence in the instruction is:)If you find that the defendant was negligent you must next consider whether the negligence was a substantial factor in causing plaintiff's | has been revised.)(Transcript page 254—In paragraph on foreseeability, after “or to take other suitable precautions,” the court adds, in two places: “or to give adequate warning.”)(The court omits optional paragraph on failure to warn, and paragraph on open and obvious conditions.)(Transcript page 254—In the paragraph starting with, “If you find that plaintiff's presence was not foreseeable. . .,” after “took suitable precautions,” the court adds: “or gave plaintiff an adequate warning.” The court omits “On the other hand, if you find ([add where appropriate:] that AB's presence was foreseeable and) that AB knew of the condition or would have been able to discover it by the use of reasonable care but that CD failed to correct the condition or take suitable precautions, you will find that CD was negligent.”)(Transcript page 255—The final sentence in the instruction is:)If you find that the defendant was negligent you must next consider whether the negligence was a substantial factor in causing plaintiff's |
| injury.22. . | injury.22. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering23. . | Suffering23. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (regarding enjoyment of | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (regarding enjoyment of |
| life)24. . | life)24. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (regarding income | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (regarding income |
| taxes)25. . | taxes)25. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 257—The court omits: “the injuries or disabilities are expected to continue. If you find that the injuries or disabilities are permanent, you should take into consideration the period of time that the,” condensing the first two sentences of the second paragraph into one sentence, and omitting any finding of whether the injuries are permanent:)In this regard you take into consideration period of time that plaintiff can be expected to live.(Court gives Plaintiff's life expectancy as 23.2 | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript page 257—The court omits: “the injuries or disabilities are expected to continue. If you find that the injuries or disabilities are permanent, you should take into consideration the period of time that the,” condensing the first two sentences of the second paragraph into one sentence, and omitting any finding of whether the injuries are permanent:)In this regard you take into consideration period of time that plaintiff can be expected to live.(Court gives Plaintiff's life expectancy as 23.2 |
| years.)26. . | years.)26. PJI 1:97. |
| General Instruction—Special | General Instruction—Special |
| Verdicts27. . | Verdicts27. PJI 1:28. |
| Conclusion (Transcript page 259—The court refers to “conscious convictions” rather than “conscientious | Conclusion (Transcript page 259—The court refers to “conscious convictions” rather than “conscientious |
| convictions.”)28. . | convictions.”)28. PJI 1:29. |
| Alternate Jurors(Transcript page 261—The court adds:)Okay. Counsel, I'm sending the verdict sheet. I have changed accident to injury, and you should be happy.C. Case Documents Available on Westlaw1.On appeal: Mateo v. 83 Post Ave. Associates, 12 A.D.3d 205, 784 N.Y.S.2d 520 (1st Dep't 2004) (affirming verdict)Verdict, Agreement and Settlement (Verdict), 2003 WL 24306200Jury Instruction, 2002 WL 33005729Trial Motion, Memorandum and Affidavit (Affirmation), 2002 WL 33008784Verdict, Agreement and Settlement (Verdict Sheet), 2002 WL 33005727Trial Pleading (Verified Answer), 1999 WL 34001499Trial Pleading (Summons), 1999 WL 34001500Expert Trial Transcript, | Alternate Jurors(Transcript page 261—The court adds:)Okay. Counsel, I'm sending the verdict sheet. I have changed accident to injury, and you should be happy.C. Case Documents Available on Westlaw1.On appeal: Mateo v. 83 Post Ave. Associates, 12 A.D.3d 205, 784 N.Y.S.2d 520 (1st Dep't 2004) (affirming verdict)Verdict, Agreement and Settlement (Verdict), 2003 WL 24306200Jury Instruction, 2002 WL 33005729Trial Motion, Memorandum and Affidavit (Affirmation), 2002 WL 33008784Verdict, Agreement and Settlement (Verdict Sheet), 2002 WL 33005727Trial Pleading (Verified Answer), 1999 WL 34001499Trial Pleading (Summons), 1999 WL 34001500Expert Trial Transcript, |
| 2.Sample | 1999 WL 340015272.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:4 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:4 Premises |
| liability/Lead paint poisoning/Two plaintiffs, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Lead paint poisoningCase Name: Ana Jiminez, an infant, by her mother and natural guardian Andrea Jiminez and Andrea Jiminez, individually, Plaintiffs, v. The City of New York and New York City Housing Authority, Defendants.Court: Supreme Court of New York, New York CountyJudge: Norman C. RypDocket Number: 111236/96Verdict Date: November 26, 2002Outcome: $795,160. Verdict affirmed on appealBrief Summary of Facts: Plaintiff Andrea Jiminez, a tenant in a building owned by the New York City Housing Authority, brought an action against her landlord for damage caused to her daughter, Ana, from ingesting lead paint. Defendant failed to rebut the presumption that lead paint is a hazardous condition. The appeals court upheld the verdict, noting that the level of lead in Plaintiff's blood was high enough to cause the injuries she suffered.B. Jury Instructions Given by the | liability/Lead paint poisoning/Two plaintiffs, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Lead paint poisoningCase Name: Ana Jiminez, an infant, by her mother and natural guardian Andrea Jiminez and Andrea Jiminez, individually, Plaintiffs, v. The City of New York and New York City Housing Authority, Defendants.Court: Supreme Court of New York, New York CountyJudge: Norman C. RypDocket Number: 111236/96Verdict Date: November 26, 2002Outcome: $795,160. Verdict affirmed on appealBrief Summary of Facts: Plaintiff Andrea Jiminez, a tenant in a building owned by the New York City Housing Authority, brought an action against her landlord for damage caused to her daughter, Ana, from ingesting lead paint. Defendant failed to rebut the presumption that lead paint is a hazardous condition. The appeals court upheld the verdict, noting that the level of lead in Plaintiff's blood was high enough to cause the injuries she suffered.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles Stated (Transcript page A-1650—The court varies from the pattern instruction considerably. Regarding acceptance of the law as the court gives it, the court adds “without hesitation or reservation.” Regarding the presence of a lawyer on the panel, the court elaborates:)You cannot accept the law or discuss the law from anybody else even if there happens to be on the jury panel another distinguished lawyer or a distinguished judge because very few have exemptions. Judges, even the chief judge, can serve on the jury. And a number of judges have. And in about a month I will be recalled to jury duty probably on the criminal side. So, the fact that someone in your jury happens or may know the law better or clearer than the judge, you have to accept the law from the judge and from no one else.Author's Comment: Annually, about 2,600 lawyers are chosen to serve on juries, including a small number of judges. 1A NY PJI3d 1:21, at 47 (2018). Note that | Review Principles Stated (Transcript page A-1650—The court varies from the pattern instruction considerably. Regarding acceptance of the law as the court gives it, the court adds “without hesitation or reservation.” Regarding the presence of a lawyer on the panel, the court elaborates:)You cannot accept the law or discuss the law from anybody else even if there happens to be on the jury panel another distinguished lawyer or a distinguished judge because very few have exemptions. Judges, even the chief judge, can serve on the jury. And a number of judges have. And in about a month I will be recalled to jury duty probably on the criminal side. So, the fact that someone in your jury happens or may know the law better or clearer than the judge, you have to accept the law from the judge and from no one else.Author's Comment: Annually, about 2,600 lawyers are chosen to serve on juries, including a small number of judges. 1A NY PJI3d 1:21, at 47 (2018). Note that |
| PJI 1:21 |
| itself contains optional language to use if a lawyer or judge is a member of the jury—adding to the sentence, “You are not to ask anyone else about the law”, the phrase “including the lawyer or judge serving as a juror.” | itself contains optional language to use if a lawyer or judge is a member of the jury—adding to the sentence, “You are not to ask anyone else about the law”, the phrase “including the lawyer or judge serving as a juror.” |
| .(Transcript | PJI 1:21.(Transcript |
| page A-1651—The court elaborates on questions and answers stricken from the record:)You are not to draw any inference from any unanswered questions nor consider questions and answers stricken from the record and dismissed from your mind because the law requires that you only consider the admissible, the competent evidence and evaluate that.(Transcript page A-1651—Regarding the weight to be given to evidence, the court, instead of “everyday affairs,” refers to “ daily affairs at home, on the job, in your occupation or profession.” Regarding factors to consider, the court adds “and bearing” after “manner.” Ending the instruction, the court elaborates:)The opportunity the witness had to observe or hear or otherwise perceive the facts testified, as well as the probability or improbability of that particular testimony or that particular evidentiary exhibit are all factors that you may consider in determining the weight or believability or credibility or lack thereof in evaluating the testimony of a particular witness or evidentiary | page A-1651—The court elaborates on questions and answers stricken from the record:)You are not to draw any inference from any unanswered questions nor consider questions and answers stricken from the record and dismissed from your mind because the law requires that you only consider the admissible, the competent evidence and evaluate that.(Transcript page A-1651—Regarding the weight to be given to evidence, the court, instead of “everyday affairs,” refers to “ daily affairs at home, on the job, in your occupation or profession.” Regarding factors to consider, the court adds “and bearing” after “manner.” Ending the instruction, the court elaborates:)The opportunity the witness had to observe or hear or otherwise perceive the facts testified, as well as the probability or improbability of that particular testimony or that particular evidentiary exhibit are all factors that you may consider in determining the weight or believability or credibility or lack thereof in evaluating the testimony of a particular witness or evidentiary |
| exhibit.3. . | exhibit.3. PJI 1:91. |
| General Instruction—Interested Witness—Generally (Transcript page A-1652—Prefacing the discussion, the court states:)Now, the plaintiff or plaintiffs originally, but plaintiff Ana Jiminez as well as her mother. And I believe her separate claim has been withdrawn. So, the only plaintiff in this case is Ana Jiminez. Since she's under 18, she has to be represented by her legal guardian. And that is her mother, Andrea Jiminez. Obviously, she is interested in the outcome of this case. You heard her testify. You heard the mother, her guardian, testify. Now, obviously each is an interested witness.(Transcript page A-1652 to 1653—In addition to “experience” dictating how one perceives a witness, the court adds “common sense and ethical judgment.”)(Transcript page A-1653—The court adds names of further interested witnesses:)The fact that the witness, who is not a live witness, but you heard about her through a reading of her examination before trial by plaintiff, and possibly by defendant—I don't recall. By plaintiff—Dina Mathis was employed by the New York City Housing Authority, the defendant, and the testimony you may have heard of her relationship with her former employer, may be considered by you in deciding whether that testimony of Dina Matthis was in any way influenced by that former employment relationship with the New York City Housing Authority. The parties agreed that Dina Mathis no longer works for the New York City Housing | General Instruction—Interested Witness—Generally (Transcript page A-1652—Prefacing the discussion, the court states:)Now, the plaintiff or plaintiffs originally, but plaintiff Ana Jiminez as well as her mother. And I believe her separate claim has been withdrawn. So, the only plaintiff in this case is Ana Jiminez. Since she's under 18, she has to be represented by her legal guardian. And that is her mother, Andrea Jiminez. Obviously, she is interested in the outcome of this case. You heard her testify. You heard the mother, her guardian, testify. Now, obviously each is an interested witness.(Transcript page A-1652 to 1653—In addition to “experience” dictating how one perceives a witness, the court adds “common sense and ethical judgment.”)(Transcript page A-1653—The court adds names of further interested witnesses:)The fact that the witness, who is not a live witness, but you heard about her through a reading of her examination before trial by plaintiff, and possibly by defendant—I don't recall. By plaintiff—Dina Mathis was employed by the New York City Housing Authority, the defendant, and the testimony you may have heard of her relationship with her former employer, may be considered by you in deciding whether that testimony of Dina Matthis was in any way influenced by that former employment relationship with the New York City Housing Authority. The parties agreed that Dina Mathis no longer works for the New York City Housing |
| Authority.4. . | Authority.4. PJI 1:22. |
| Falsus in Uno (Transcript page A-1653 to 1654—The court adds “or significant” after “important” as a modifier for “matter.” In the second sentence, the court adds “willfully or intentionally” as modifiers of “testifies.” Instead of “material fact,” the court refers to “ significant or important matter.” In the final sentence, the court adds, after “what portion of their testimony you accept,” the following:). . .as well as evaluating the evidentiary exhibits. . .Author's Comment: The tension in the “falsus in uno” charge, | Falsus in Uno (Transcript page A-1653 to 1654—The court adds “or significant” after “important” as a modifier for “matter.” In the second sentence, the court adds “willfully or intentionally” as modifiers of “testifies.” Instead of “material fact,” the court refers to “ significant or important matter.” In the final sentence, the court adds, after “what portion of their testimony you accept,” the following:). . .as well as evaluating the evidentiary exhibits. . .Author's Comment: The tension in the “falsus in uno” charge, |
| , | PJI 1:22, |
| between “material” on the one hand and “important” or “significant” on the other (the pattern charge allows jurors to disregard the entire testimony of a witness if he or she has “willfully testified falsely as to any material fact, that is as to an important matter . . ..”) is interesting but unresolved by either the pattern charge itself or these modifications. Clearly, a matter can be “important” in some sense without being “material” to the case before the | between “material” on the one hand and “important” or “significant” on the other (the pattern charge allows jurors to disregard the entire testimony of a witness if he or she has “willfully testified falsely as to any material fact, that is as to an important matter . . ..”) is interesting but unresolved by either the pattern charge itself or these modifications. Clearly, a matter can be “important” in some sense without being “material” to the case before the |
| court.5. . | court.5. PJI 1:90. |
| General Instruction—Expert Witness (Transcript pages A-1654 to 1655—The court lists the experts:)Now, there were a number of expert witnesses that testified for each of the parties. And I will go down starting with the plaintiff.There was Irving Friedman. I have neurologist. I don't know if he was a neuropsychiatrist. But I think his basic profession was neurologist.I have John Soter, a lead assessor.Sheryl—I don't know whether Sheryl Unsworth was credited as an expert.Author's Comment: The judge's ostensible confusion concerning some of the experts is a small but not trivial matter; if the judge doesn't remember their qualifications, a jury might wonder, how important can they be? | General Instruction—Expert Witness (Transcript pages A-1654 to 1655—The court lists the experts:)Now, there were a number of expert witnesses that testified for each of the parties. And I will go down starting with the plaintiff.There was Irving Friedman. I have neurologist. I don't know if he was a neuropsychiatrist. But I think his basic profession was neurologist.I have John Soter, a lead assessor.Sheryl—I don't know whether Sheryl Unsworth was credited as an expert.Author's Comment: The judge's ostensible confusion concerning some of the experts is a small but not trivial matter; if the judge doesn't remember their qualifications, a jury might wonder, how important can they be? |
| PJI 1:90 |
| itself leaves blanks only for the name and profession of the experts; it's important for the court to get these right, and there's no need to recite their degrees, which could be less important than other qualifications and credentials. Let the attorneys argue about it.Theodore Lidsky, a neuroscientist, a PhD doctor as distinct from a medical doctor.Michael Soudry, an economist.Those were for the plaintiff.For the defendant we had:Dr. David Kaufman. That's a medical doctor, pediatric neurologist.Thomas Boland is a neuropsychiatrist.Fred Goldman. No, he came in later.Vincent Coluccio, a PhD doctor, public health specialist.And Fred Goldman a doctor, PhD economist.Those were the experts for each of the sides.(Transcript page A-1656—After “asked the expert to assume,” The court adds: “as a hypothetical | itself leaves blanks only for the name and profession of the experts; it's important for the court to get these right, and there's no need to recite their degrees, which could be less important than other qualifications and credentials. Let the attorneys argue about it.Theodore Lidsky, a neuroscientist, a PhD doctor as distinct from a medical doctor.Michael Soudry, an economist.Those were for the plaintiff.For the defendant we had:Dr. David Kaufman. That's a medical doctor, pediatric neurologist.Thomas Boland is a neuropsychiatrist.Fred Goldman. No, he came in later.Vincent Coluccio, a PhD doctor, public health specialist.And Fred Goldman a doctor, PhD economist.Those were the experts for each of the sides.(Transcript page A-1656—After “asked the expert to assume,” The court adds: “as a hypothetical |
| question.”)6. . | question.”)6. PJI 1:23. |
| Burden of Proof (Transcript page A-1656—The court adds that the burden in the “main case” is on the Plaintiff; elaborates on “preponderance” as used in the civil justice system:)Now, the burden of proof on the main case is upon the plaintiff. The standard of that burden of proof is by a fair preponderance of the credible evidence. What do we mean by a fair preponderance of the credible evidence? It is not the standard used in the criminal justice system. It is the standard used in the civil justice system, by a fair preponderance of the credible evidence.(Transcript page A-1657—Instead of “prevail on its claim,” the court says:)prevail on its claims both in liability and on damages(Transcript pages A-1657 to 1658—The court adds:)So, picture justice blindfolded holding up the scales of justice. You must determine after weighing all the evidence, all the witnesses, whether they were questioned on direct or cross-examination or redirect or recross-examination or by the Court, and the evidentiary exhibits that you'll have before you, the documents, the photographs, the reports, after considering all that, on the issues of liability and damages, you must determine that the evidence more nearly favors the proponent, that is, the person who has the burden of proof.(Transcript page A-1658—The court questions whether there is an affirmative defense:)In this case it is the plaintiff. I don't believe there's an affirmative defense.(Transcript page A-1658—The court omits: “If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, then you must decide the question in favor of the defendant. It is only if the evidence favoring the plaintiff's claim outweighs the evidence opposed to it that you can find in favor of plaintiff.” Instead, the court says:)So, if you picture the scales of justice, it has to tip however slightly in favor of the plaintiff. If it tips the other way, then you must find for the defendant. If it doesn't tip at all, then you must find for the plaintiff.MR. BOTTARI: Objection.THE COURT: I'm sorry. You must find for the defendant. Sustained. Sorry about that.It must, for the plaintiff to prevail, it must tip in favor of the plaintiff however slightly. If it doesn't tip at all, tips in favor of the defendant, you must find for the defendant. That's on liability and damages.(Transcript page A-1659—The court adds a caveat regarding rebuttable presumption:)Now, there's one caveat to that. And I will discuss it later in the evidence because in one of the regulations, there's reference to a rebuttable presumption which puts a burden of going forward that I will discuss with you a little later on in this | Burden of Proof (Transcript page A-1656—The court adds that the burden in the “main case” is on the Plaintiff; elaborates on “preponderance” as used in the civil justice system:)Now, the burden of proof on the main case is upon the plaintiff. The standard of that burden of proof is by a fair preponderance of the credible evidence. What do we mean by a fair preponderance of the credible evidence? It is not the standard used in the criminal justice system. It is the standard used in the civil justice system, by a fair preponderance of the credible evidence.(Transcript page A-1657—Instead of “prevail on its claim,” the court says:)prevail on its claims both in liability and on damages(Transcript pages A-1657 to 1658—The court adds:)So, picture justice blindfolded holding up the scales of justice. You must determine after weighing all the evidence, all the witnesses, whether they were questioned on direct or cross-examination or redirect or recross-examination or by the Court, and the evidentiary exhibits that you'll have before you, the documents, the photographs, the reports, after considering all that, on the issues of liability and damages, you must determine that the evidence more nearly favors the proponent, that is, the person who has the burden of proof.(Transcript page A-1658—The court questions whether there is an affirmative defense:)In this case it is the plaintiff. I don't believe there's an affirmative defense.(Transcript page A-1658—The court omits: “If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, then you must decide the question in favor of the defendant. It is only if the evidence favoring the plaintiff's claim outweighs the evidence opposed to it that you can find in favor of plaintiff.” Instead, the court says:)So, if you picture the scales of justice, it has to tip however slightly in favor of the plaintiff. If it tips the other way, then you must find for the defendant. If it doesn't tip at all, then you must find for the plaintiff.MR. BOTTARI: Objection.THE COURT: I'm sorry. You must find for the defendant. Sustained. Sorry about that.It must, for the plaintiff to prevail, it must tip in favor of the plaintiff however slightly. If it doesn't tip at all, tips in favor of the defendant, you must find for the defendant. That's on liability and damages.(Transcript page A-1659—The court adds a caveat regarding rebuttable presumption:)Now, there's one caveat to that. And I will discuss it later in the evidence because in one of the regulations, there's reference to a rebuttable presumption which puts a burden of going forward that I will discuss with you a little later on in this |
| charge.7. . | charge.7. PJI 1:24. |
| Return to Courtroom (Transcript page A-1659—In addition to the “right” to have the charge read back, the court adds “if not the | Return to Courtroom (Transcript page A-1659—In addition to the “right” to have the charge read back, the court adds “if not the |
| obligation.”)8. . | obligation.”)8. PJI 1:25. |
| Consider Only Testimony and Exhibits (Transcript pages A-1658 to 1660—The court lists all the witnesses, then says:)Now, you will have available to you, that is, will be brought to you, mostly in the box—we have an evidentiary box. Plus there are blowups that will be brought to you separately for the plaintiff.(Transcript pages A-1660 to 1664—The court lists all evidence in the box, then says:)Okay. Those are all the exhibits and the witnesses and together they comprise the evidence which is the only thing you may consider. Whether the evidence and testimony is live or has been given to you through questions and answers—as I said, Dina Mathis. I think there was reading a number of times by—the plaintiff's mother, Andrea Jiminez. Her examination before trial or before the action which is called a 50-H hearing was read to you. And, under our rules of procedure, if it has been taken under oath with the right to counsel, it's to be given the same consideration as if the testimony was taken live before your eyes in this very courtroom.(Transcript page A-1664—The court concludes with the final sentence of the pattern | Consider Only Testimony and Exhibits (Transcript pages A-1658 to 1660—The court lists all the witnesses, then says:)Now, you will have available to you, that is, will be brought to you, mostly in the box—we have an evidentiary box. Plus there are blowups that will be brought to you separately for the plaintiff.(Transcript pages A-1660 to 1664—The court lists all evidence in the box, then says:)Okay. Those are all the exhibits and the witnesses and together they comprise the evidence which is the only thing you may consider. Whether the evidence and testimony is live or has been given to you through questions and answers—as I said, Dina Mathis. I think there was reading a number of times by—the plaintiff's mother, Andrea Jiminez. Her examination before trial or before the action which is called a 50-H hearing was read to you. And, under our rules of procedure, if it has been taken under oath with the right to counsel, it's to be given the same consideration as if the testimony was taken live before your eyes in this very courtroom.(Transcript page A-1664—The court concludes with the final sentence of the pattern |
| instruction.)9. . | instruction.)9. PJI 1:25A. |
| Juror's Use of Professional Expertise (Transcript pages A-1664 to 1665—The court provides a variation on this instruction:)Now, you've heard that amongst the witnesses, there are experts and those are the only experts, through their testimony, that you may consider. You cannot communicate or consult any outside expert or any expert on the jury. You must use your common sense, your ethical values and your life experience in weighing the | Juror's Use of Professional Expertise (Transcript pages A-1664 to 1665—The court provides a variation on this instruction:)Now, you've heard that amongst the witnesses, there are experts and those are the only experts, through their testimony, that you may consider. You cannot communicate or consult any outside expert or any expert on the jury. You must use your common sense, your ethical values and your life experience in weighing the |
| evidence.10. . | evidence.10. PJI 2:235. |
| Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment (Transcript page A-1665—The court delivers a small part of this pattern instruction:)Now, as you know, the defendant is a corporation. It is a legal person. And, however, it acts through individuals such as employees. And so long as any of its employees acted within the scope of their employment, the employer is responsible. I don't think there's any issue on that in this case. And I think both counsel have agreed that Dina Mathis is no longer an employee of the New York City Housing Authority although formerly she was I believe called a housing assistant. At one point it was a housing assistant manager. But I think the correct designation was housing | Vicarious or Derivative Responsibility—Employer-Employee—Scope of Employment (Transcript page A-1665—The court delivers a small part of this pattern instruction:)Now, as you know, the defendant is a corporation. It is a legal person. And, however, it acts through individuals such as employees. And so long as any of its employees acted within the scope of their employment, the employer is responsible. I don't think there's any issue on that in this case. And I think both counsel have agreed that Dina Mathis is no longer an employee of the New York City Housing Authority although formerly she was I believe called a housing assistant. At one point it was a housing assistant manager. But I think the correct designation was housing |
| assistant.11. . | assistant.11. PJI 1:26. |
| Five-Sixths Verdict (Transcript pages A-1665 to 1666—After delivering the first sentence of the pattern instruction, the court elaborates regarding the verdict sheet:)Now, you will have to answer I believe at least one, maybe two questions. And whether you answer more depends on the answers to the previous questions following the instructions. You will have to answer up to six questions to get to Question Number Six. It has four subdivisions, A, B, C, D. So, you follow the instructions.Now, as I said, five of the six of you will agree on an answer is sufficient under the law. Does it have to be the same five on every question? The answer is no. Any five of you is sufficient under the law. And, when you're in agreement on all the questions that you under the instructions have to answer, you will report that to the | Five-Sixths Verdict (Transcript pages A-1665 to 1666—After delivering the first sentence of the pattern instruction, the court elaborates regarding the verdict sheet:)Now, you will have to answer I believe at least one, maybe two questions. And whether you answer more depends on the answers to the previous questions following the instructions. You will have to answer up to six questions to get to Question Number Six. It has four subdivisions, A, B, C, D. So, you follow the instructions.Now, as I said, five of the six of you will agree on an answer is sufficient under the law. Does it have to be the same five on every question? The answer is no. Any five of you is sufficient under the law. And, when you're in agreement on all the questions that you under the instructions have to answer, you will report that to the |
| Court.12. . | Court.12. PJI 1:70. |
| General Instruction—Circumstantial Evidence (Transcript page A-1666—The court brings up the “fair preponderance,” and talks about direct evidence before going on to talk about circumstantial evidence:)Now, I mentioned that the plaintiff has to prove her case by a fair preponderance of the credible evidence. Now, that proof may be by direct evidence, which includes the testimony of a witness or witnesses concerning what a witness saw, heard or did. It may include evidentiary exhibits. Writings, photographs or other physical objects may be considered as proof of a fact. But evidence can be either direct or circumstantial. Facts may be proved by, as I said, direct or circumstantial evidence or a combination of both.(Transcript pages A-1666 to 1668: Regarding the “glass of water” example, the court states that it's green tea rather than water in the glass, and states that it is “on the ledge between the judge's bench and the witness chair.” The court omits: “The witness states that, while he was looking the other way, he heard the breaking of glass.” Otherwise, Court adheres to pattern instruction regarding the “glass of water” example.)(Transcript page A-1668: At conclusion of the instruction, the court adds:)Where there are only proved facts, it would be only a guess as to who did it. However, if the witness testified also that he heard the witness say I am sorry, this additional evidence would allow you to decide who knocked over the water | General Instruction—Circumstantial Evidence (Transcript page A-1666—The court brings up the “fair preponderance,” and talks about direct evidence before going on to talk about circumstantial evidence:)Now, I mentioned that the plaintiff has to prove her case by a fair preponderance of the credible evidence. Now, that proof may be by direct evidence, which includes the testimony of a witness or witnesses concerning what a witness saw, heard or did. It may include evidentiary exhibits. Writings, photographs or other physical objects may be considered as proof of a fact. But evidence can be either direct or circumstantial. Facts may be proved by, as I said, direct or circumstantial evidence or a combination of both.(Transcript pages A-1666 to 1668: Regarding the “glass of water” example, the court states that it's green tea rather than water in the glass, and states that it is “on the ledge between the judge's bench and the witness chair.” The court omits: “The witness states that, while he was looking the other way, he heard the breaking of glass.” Otherwise, Court adheres to pattern instruction regarding the “glass of water” example.)(Transcript page A-1668: At conclusion of the instruction, the court adds:)Where there are only proved facts, it would be only a guess as to who did it. However, if the witness testified also that he heard the witness say I am sorry, this additional evidence would allow you to decide who knocked over the water |
| glass.13. . | glass.13. PJI 1:27. |
| Exclude Sympathy (Transcript pages A-1668 to 1669—Court interjects:)This is a case that may lend itself to sympathy. You heard Ana testify.(The court further interjects:)You're not to be affected by antipathy against any of the parties. You may feel sympathy for one party and antipathy to the opposite party.(The court omits: “Your verdict will be determined by the conclusion you | Exclude Sympathy (Transcript pages A-1668 to 1669—Court interjects:)This is a case that may lend itself to sympathy. You heard Ana testify.(The court further interjects:)You're not to be affected by antipathy against any of the parties. You may feel sympathy for one party and antipathy to the opposite party.(The court omits: “Your verdict will be determined by the conclusion you |
| reach. . ..”)14. . | reach. . ..”)14. PJI 1:97. |
| General Instruction—Special Verdicts (Transcript pages A-1669 to 1670—The court's discussion of the verdict sheet differs considerably from the pattern instruction:)Now, as I said, you will be given a jury interrogatory sheet or a jury verdict sheet. There have been a number of questions, as I said, six total with some subdivisions. Those questions were initially drafted by the judge and then they were submitted to counsel who were given input. And they were given the option of either submitting alternative interrogatories or giving constructive criticism. And some changes were made, not all the changes requested, but which the Court deemed appropriate.So, what I'm saying is this is the interrogatory in the judgment of this Court that is fair and impartial to all sides.You are not to assume or believe or suspect that there's any subliminal message, that there's any subconscious message in between the lines that both, either through the text, the wording, the matter, or the manner or the order of questions, do not send you any message to favor or disfavor either party to this lawsuit.So, you'll read the questions, follow the instructions. When you answer, at least five of the six of you agree on an answer to each of the questions following the instructions you're required to answer, you will date it and each of you will sign it. That is, the foreperson will date | General Instruction—Special Verdicts (Transcript pages A-1669 to 1670—The court's discussion of the verdict sheet differs considerably from the pattern instruction:)Now, as I said, you will be given a jury interrogatory sheet or a jury verdict sheet. There have been a number of questions, as I said, six total with some subdivisions. Those questions were initially drafted by the judge and then they were submitted to counsel who were given input. And they were given the option of either submitting alternative interrogatories or giving constructive criticism. And some changes were made, not all the changes requested, but which the Court deemed appropriate.So, what I'm saying is this is the interrogatory in the judgment of this Court that is fair and impartial to all sides.You are not to assume or believe or suspect that there's any subliminal message, that there's any subconscious message in between the lines that both, either through the text, the wording, the matter, or the manner or the order of questions, do not send you any message to favor or disfavor either party to this lawsuit.So, you'll read the questions, follow the instructions. When you answer, at least five of the six of you agree on an answer to each of the questions following the instructions you're required to answer, you will date it and each of you will sign it. That is, the foreperson will date |
| it.15. . | it.15. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined—Generally (Transcript page A-1670—The court precedes the instruction with:)Now, this case is a case of negligence. The negligence that is defined comes both from the case law, a general definition, but it's further refined by various statutes and ordinances. I will give you the general definition first and then I will give you the appropriate statutes.(Transcript page A-1671—The court adds definition of “person:”)The person may be a flesh and blood person. It may be a corporate person.(The court adds:)Now, the appropriate acts is further specifically defined and refined by the statute and ordinance that I will shortly | Common Law Standard of Care—Negligence Defined—Generally (Transcript page A-1670—The court precedes the instruction with:)Now, this case is a case of negligence. The negligence that is defined comes both from the case law, a general definition, but it's further refined by various statutes and ordinances. I will give you the general definition first and then I will give you the appropriate statutes.(Transcript page A-1671—The court adds definition of “person:”)The person may be a flesh and blood person. It may be a corporate person.(The court adds:)Now, the appropriate acts is further specifically defined and refined by the statute and ordinance that I will shortly |
| read.16. . | read.16. PJI 2:12. |
| Common Law Standard of Care—Foreseeability—Generally (Transcript pages A-1671 to 1672—The court specifies that “person” includes “corporate person.” The court concludes the instruction with:)And again what could be reasonable or what's unreasonable is subject to the statutory provisions or ordinance that I will shortly read to | Common Law Standard of Care—Foreseeability—Generally (Transcript pages A-1671 to 1672—The court specifies that “person” includes “corporate person.” The court concludes the instruction with:)And again what could be reasonable or what's unreasonable is subject to the statutory provisions or ordinance that I will shortly read to |
| you.17. . | you.17. PJI 2:70. |
| Proximate Cause—In General (Transcript page A-1672—The court interjects:)And you will see a question about that in the interrogatory. I think it's Question Number Five.(The court omits: “There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to | Proximate Cause—In General (Transcript page A-1672—The court interjects:)And you will see a question about that in the interrogatory. I think it's Question Number Five.(The court omits: “There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to |
| it.”)18. . | it.”)18. PJI 2:25. |
| Statutory Standard of Care—Statute of General Application (Transcript page A-1673—The court reads to the jury the appropriate statute regarding lead paint:)Now, as I said, there are statutes and ordinance that apply. We'll take the statutes first.The plaintiff claims that the defendant failed to comply with and violated Section 1370 of the Public Health Law. And I'm not going to read all of it. I'm simply going to read the relevant subdivisions in 1370.Is labeled Definitions.1370, Subdivision Three:A condition conducive to lead poisoning means: (i) paint or other similar surface-coating material containing lead in a condition accessible for ingestion or inhalation or where peeling or chipping of the paint or other similar surface-coating material occurs or is likely to occur; and, (ii) other environmental conditions which may result in significant lead exposure.So, that is the definition for a condition conducive to lead poisoning.Elevated lead levels means a blood lead level greater than or equal to ten micrograms of lead per deciliter of whole blood or such blood lead level as may be established by the department pursuant to rule or regulation.But ten is a number that you've heard. And that's the—we're talking about blood lead level or levels. And that's the definition of elevated lead levels as of April 1, 1993.Plaintiff claims that defendant failed to comply with either one or both of these subsections of the Public Health Law. That is, Section 1370, Subdivision Three and/or Six.If you find that defendant violated that statute, and if that violation was a proximate cause of the injury to plaintiff, then defendant is liable.(Transcript pages A-1702 to 1703—The defendants' attorney, after all instructions are delivered, objects to stating “defendant is liable.” The defendants' attorney contended that it should state that the jury could find “negligence.” The court conceded, “You may be right.” However, the pattern instruction uses the word “liable.”)Author's Comment: | Statutory Standard of Care—Statute of General Application (Transcript page A-1673—The court reads to the jury the appropriate statute regarding lead paint:)Now, as I said, there are statutes and ordinance that apply. We'll take the statutes first.The plaintiff claims that the defendant failed to comply with and violated Section 1370 of the Public Health Law. And I'm not going to read all of it. I'm simply going to read the relevant subdivisions in 1370.Is labeled Definitions.1370, Subdivision Three:A condition conducive to lead poisoning means: (i) paint or other similar surface-coating material containing lead in a condition accessible for ingestion or inhalation or where peeling or chipping of the paint or other similar surface-coating material occurs or is likely to occur; and, (ii) other environmental conditions which may result in significant lead exposure.So, that is the definition for a condition conducive to lead poisoning.Elevated lead levels means a blood lead level greater than or equal to ten micrograms of lead per deciliter of whole blood or such blood lead level as may be established by the department pursuant to rule or regulation.But ten is a number that you've heard. And that's the—we're talking about blood lead level or levels. And that's the definition of elevated lead levels as of April 1, 1993.Plaintiff claims that defendant failed to comply with either one or both of these subsections of the Public Health Law. That is, Section 1370, Subdivision Three and/or Six.If you find that defendant violated that statute, and if that violation was a proximate cause of the injury to plaintiff, then defendant is liable.(Transcript pages A-1702 to 1703—The defendants' attorney, after all instructions are delivered, objects to stating “defendant is liable.” The defendants' attorney contended that it should state that the jury could find “negligence.” The court conceded, “You may be right.” However, the pattern instruction uses the word “liable.”)Author's Comment: |
| PJI 2:25 |
| correctly makes defendant “liable” if there was negligence and the negligence proximately caused injury to the | correctly makes defendant “liable” if there was negligence and the negligence proximately caused injury to the |
| plaintiff.19. . | plaintiff.19. PJI 2:29. |
| Statutory Standard of Care—Ordinances or Regulations (Transcript pages A-1674 to 1675—The court reads appropriate regulation, regarding a landlord's duty to remove lead paint:)Now, the plaintiff also claims that the defendant violated certain City or State regulations, okay, one of which was New York City Administrative Code Title 27-2013 Subdivision h. And that's I believe Subdivisions One—Subdivisions One, Two or Three.Subdivision h (1): The owner of a multiple dwelling—this clearly was a multiple dwelling. It had more than three units—shall remove or cover in a manner approved by the department—and I think this is, in this case, it's the Buildings Department.MR. GITTIN: Housing Preservation and Development.THE COURT: I'm sorry. HPD, Housing and Preservation Department. Okay.—any paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter—this is content in the paint—or greater or containing more than 0.5 percent of metallic lead—I don't think that's an—is that an issue in this case, metallic lead; yes, no?MR. GITTIN: It is not specifically covered by the evidence here.THE COURT: 0.7 milligrams in terms of the paint content that we've been discussing.—or other similar surface-coating material on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child or children of seven years of age and under reside.Subdivision 2: In any multiple dwelling—and this is a multiple dwelling—erected prior to January 1, 1960—and this was the case. I think it was built in 1945—in which paint or other similar surface-coating material is found to be peeling on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit which a child or children seven years of age or under reside, it shall be presumed that the peeling substance contains more than 0.5 percent of metallic lead based on the nonvolatile content of the paint or other similar surface-coating material or having a reading of 0.7 milligrams of lead per square centimeter or | Statutory Standard of Care—Ordinances or Regulations (Transcript pages A-1674 to 1675—The court reads appropriate regulation, regarding a landlord's duty to remove lead paint:)Now, the plaintiff also claims that the defendant violated certain City or State regulations, okay, one of which was New York City Administrative Code Title 27-2013 Subdivision h. And that's I believe Subdivisions One—Subdivisions One, Two or Three.Subdivision h (1): The owner of a multiple dwelling—this clearly was a multiple dwelling. It had more than three units—shall remove or cover in a manner approved by the department—and I think this is, in this case, it's the Buildings Department.MR. GITTIN: Housing Preservation and Development.THE COURT: I'm sorry. HPD, Housing and Preservation Department. Okay.—any paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter—this is content in the paint—or greater or containing more than 0.5 percent of metallic lead—I don't think that's an—is that an issue in this case, metallic lead; yes, no?MR. GITTIN: It is not specifically covered by the evidence here.THE COURT: 0.7 milligrams in terms of the paint content that we've been discussing.—or other similar surface-coating material on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child or children of seven years of age and under reside.Subdivision 2: In any multiple dwelling—and this is a multiple dwelling—erected prior to January 1, 1960—and this was the case. I think it was built in 1945—in which paint or other similar surface-coating material is found to be peeling on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit which a child or children seven years of age or under reside, it shall be presumed that the peeling substance contains more than 0.5 percent of metallic lead based on the nonvolatile content of the paint or other similar surface-coating material or having a reading of 0.7 milligrams of lead per square centimeter or |
| greater.20. . | greater.20. PJI 1:63. |
| General Instruction—Burden of Proof—Effect of Presumption (Transcript pages A-1675 to 1677—The court's discussion centers on the current case, rather than on the hypothetical automobile collision put forth in the pattern instruction:)Now, we use the word presumption. This is a concept of law that puts the burden of moving forward, the initial burden to rebut that presumption, on the other side.So, it is a rebuttable presumption initially on the defendant if the building was built before January 1960 in which paint or other similar surface-coating material is found to be peeling on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child of seven or under resides. There is an initial rebuttable presumption that the readings mentioned exist.However, that presumption can be overcome by evidence to the contrary.So, you have to, if you find the presumption applies, you have to then consider whether the defendant overcame that by evidence to the contrary.To decide this question, you must consider all the evidence including the presumption. For the plaintiff to succeed in proving that, you must find that the plaintiff has proof by the greater weight of the evidence, that is, by a fair preponderance of the credible evidence. But that burden of proof is aided by the presumption of moving forward initially upon the defendant.So, where that burden is, you have to consider all the evidence initially. Was the presumption overcome by evidence to the contrary by the defendant? And, if it was, has the plaintiff overall sustained her burden of proof?(Transcript pages A-1696 to 1699—Note that at the conclusion of the charges to the jury, the plaintiffs' attorney disputes the court's characterization of the presumption as being overcome by “evidence to the contrary,” as opposed to a preponderance of evidence to the contrary. The court settles on “substantial evidence to the contrary,” and states: “I will amend it to that extent.” The court does amend it, at Instruction 36.)Author's Comment: On the effect of a presumption, | General Instruction—Burden of Proof—Effect of Presumption (Transcript pages A-1675 to 1677—The court's discussion centers on the current case, rather than on the hypothetical automobile collision put forth in the pattern instruction:)Now, we use the word presumption. This is a concept of law that puts the burden of moving forward, the initial burden to rebut that presumption, on the other side.So, it is a rebuttable presumption initially on the defendant if the building was built before January 1960 in which paint or other similar surface-coating material is found to be peeling on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child of seven or under resides. There is an initial rebuttable presumption that the readings mentioned exist.However, that presumption can be overcome by evidence to the contrary.So, you have to, if you find the presumption applies, you have to then consider whether the defendant overcame that by evidence to the contrary.To decide this question, you must consider all the evidence including the presumption. For the plaintiff to succeed in proving that, you must find that the plaintiff has proof by the greater weight of the evidence, that is, by a fair preponderance of the credible evidence. But that burden of proof is aided by the presumption of moving forward initially upon the defendant.So, where that burden is, you have to consider all the evidence initially. Was the presumption overcome by evidence to the contrary by the defendant? And, if it was, has the plaintiff overall sustained her burden of proof?(Transcript pages A-1696 to 1699—Note that at the conclusion of the charges to the jury, the plaintiffs' attorney disputes the court's characterization of the presumption as being overcome by “evidence to the contrary,” as opposed to a preponderance of evidence to the contrary. The court settles on “substantial evidence to the contrary,” and states: “I will amend it to that extent.” The court does amend it, at Instruction 36.)Author's Comment: On the effect of a presumption, |
| PJI 1:63 |
| itself states that a presumption “can be overcome by evidence to the contrary,” not necessarily “substantial evidence.” The Comment contains an excellent discussion of whether and how a presumption may be rebutted. The Comment concludes, “When the question whether the presumption has been rebutted is for the jury, and the only explanation offered is a denial, the jury should be instructed, as in the pattern charge, that they must find in accordance with the presumption unless on the evidence presented they find the presumption overcome.” 1A | itself states that a presumption “can be overcome by evidence to the contrary,” not necessarily “substantial evidence.” The Comment contains an excellent discussion of whether and how a presumption may be rebutted. The Comment concludes, “When the question whether the presumption has been rebutted is for the jury, and the only explanation offered is a denial, the jury should be instructed, as in the pattern charge, that they must find in accordance with the presumption unless on the evidence presented they find the presumption overcome.” 1A |
| , | NY PJI3d 1:63, |
| at 89 (2018) (citations omitted). Nothing there about “substantial” evidence.The defendant's failure to rebut the presumption proved critical on appeal. See Jiminez v. City of New York, 7 A.D.3d 268, 775 N.Y.S.2d 530 (1st Dep't 2004) (affirming | at 89 (2018) (citations omitted). Nothing there about “substantial” evidence.The defendant's failure to rebut the presumption proved critical on appeal. See Jiminez v. City of New York, 7 A.D.3d 268, 775 N.Y.S.2d 530 (1st Dep't 2004) (affirming |
| verdict).21. . | verdict).21. PJI 2:29. |
| Statutory Standard of Care—Ordinances or Regulations (Transcript pages A-1677 to 1679—The court reads to the jury additional applicable regulations, regarding the condition of living quarters for which a landlord is responsible:)So, that's one of the ordinances. There are other ordinances that the plaintiff claims were violated.No person shall occupy as owner, occupant or let another occupy any dwelling or dwelling unit for the purpose of living that does not comply with the following requirements:Floor, interior walls, doors and ceilings shall be sound and in good repair.And that's to be considered in conjunction with the HPD Regulation 11, Section 11-04 that I will next read to you.Now, in this state, and I'm reading from the New York State Sanitary Code Section 21.21, Subdivision A entitled Maintenance and Installation Requirements for Dwelling or Dwelling Unit occupied—and this is, A, is General. And I said floors, interior walls, doors and ceilings shall be in sound and in good repair.In addition to that, lead based and other toxic paints and materials shall not be used on any interior surface or any surface readily accessible to children.That was added and effective on January 23rd of ‘73.There's J, Subdivision J:Existing paint conditions conducive to lead poisoning shall be eliminated, whatever the procedures are of the New York State Sanitary Code.Now, the plaintiff also claims there was a violation of, I mentioned it before, Chapter 11, Section 11-04 of the HPD, New York City Department of Housing Preservation and Development, and that's Title 28.Chapter 11 is entitled Use of Lead Based Paint in Multiple Dwellings. And, as I mentioned before, it has to be a dwelling unit in which the owner or the landlord or both must be aware that there is a child or children seven years or under. Used to be six years. But I don't think it makes a difference whether it's six or seven.And there's also a requirement for having a reading of, Title 27, there's also a requirement under this chapter of the existence of paint and other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter.Now, the paint or other similar surface in Section 11-01 of which I just read the relevant parts shall be covered by applying dry wall construction. However, in the alternative, the paint or other similar surface material may be removed by scraping all loose paint and providing plaster weld or other bonding agent with the existing surface and applying two coats of paint. Where the condition is recurring and there is evidence of continued moisture, the alternative method will not be accepted.That is, the last method. Instead of covered by applying dry wall construction, if the condition is not recurring, you can use an alternative method by scraping all the loose paint and providing plaster weld or other bonding agent with the existing surface and applying two coats of paint.However, that alternative method is not acceptable where that condition is repeated or recurring and there is evidence of continuing or continued moisture.(Transcript pages A-1703 to 1704—Note that defense counsel, after instructions have been delivered, objects to the reading of section 11-01, because it “presupposes there was lead based paint in use and we knew about it and we were trying to correct it.” The court responds: “The jury has to find that. Plaintiff's claiming you deny it. . .. I think what I'm going to have to do tomorrow unfortunately is to re-read the statutes. I don't want to feature one statute as distinct from the other statute. And the PJI on it. All right. I don't want to make one more or less important than the other.”)Now, those are the various rules, regulations and ordinances that the plaintiff claims defendant violated.(Transcript pages A-1679 to 1680—The court reverts to language similar to that of the pattern instruction:)If you find the defendant violated any one or more of or all of those ordinances or regulations, you may consider the violation as some evidence of negligence along with the other evidence in the case provided that such violation—and it's the same requirement with the statute. First you have to find there was a violation and then if there was, it was a substantial factor, a substantial factor in bringing about the incident and the | Statutory Standard of Care—Ordinances or Regulations (Transcript pages A-1677 to 1679—The court reads to the jury additional applicable regulations, regarding the condition of living quarters for which a landlord is responsible:)So, that's one of the ordinances. There are other ordinances that the plaintiff claims were violated.No person shall occupy as owner, occupant or let another occupy any dwelling or dwelling unit for the purpose of living that does not comply with the following requirements:Floor, interior walls, doors and ceilings shall be sound and in good repair.And that's to be considered in conjunction with the HPD Regulation 11, Section 11-04 that I will next read to you.Now, in this state, and I'm reading from the New York State Sanitary Code Section 21.21, Subdivision A entitled Maintenance and Installation Requirements for Dwelling or Dwelling Unit occupied—and this is, A, is General. And I said floors, interior walls, doors and ceilings shall be in sound and in good repair.In addition to that, lead based and other toxic paints and materials shall not be used on any interior surface or any surface readily accessible to children.That was added and effective on January 23rd of ‘73.There's J, Subdivision J:Existing paint conditions conducive to lead poisoning shall be eliminated, whatever the procedures are of the New York State Sanitary Code.Now, the plaintiff also claims there was a violation of, I mentioned it before, Chapter 11, Section 11-04 of the HPD, New York City Department of Housing Preservation and Development, and that's Title 28.Chapter 11 is entitled Use of Lead Based Paint in Multiple Dwellings. And, as I mentioned before, it has to be a dwelling unit in which the owner or the landlord or both must be aware that there is a child or children seven years or under. Used to be six years. But I don't think it makes a difference whether it's six or seven.And there's also a requirement for having a reading of, Title 27, there's also a requirement under this chapter of the existence of paint and other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter.Now, the paint or other similar surface in Section 11-01 of which I just read the relevant parts shall be covered by applying dry wall construction. However, in the alternative, the paint or other similar surface material may be removed by scraping all loose paint and providing plaster weld or other bonding agent with the existing surface and applying two coats of paint. Where the condition is recurring and there is evidence of continued moisture, the alternative method will not be accepted.That is, the last method. Instead of covered by applying dry wall construction, if the condition is not recurring, you can use an alternative method by scraping all the loose paint and providing plaster weld or other bonding agent with the existing surface and applying two coats of paint.However, that alternative method is not acceptable where that condition is repeated or recurring and there is evidence of continuing or continued moisture.(Transcript pages A-1703 to 1704—Note that defense counsel, after instructions have been delivered, objects to the reading of section 11-01, because it “presupposes there was lead based paint in use and we knew about it and we were trying to correct it.” The court responds: “The jury has to find that. Plaintiff's claiming you deny it. . .. I think what I'm going to have to do tomorrow unfortunately is to re-read the statutes. I don't want to feature one statute as distinct from the other statute. And the PJI on it. All right. I don't want to make one more or less important than the other.”)Now, those are the various rules, regulations and ordinances that the plaintiff claims defendant violated.(Transcript pages A-1679 to 1680—The court reverts to language similar to that of the pattern instruction:)If you find the defendant violated any one or more of or all of those ordinances or regulations, you may consider the violation as some evidence of negligence along with the other evidence in the case provided that such violation—and it's the same requirement with the statute. First you have to find there was a violation and then if there was, it was a substantial factor, a substantial factor in bringing about the incident and the |
| injury.22. . | injury.22. PJI 2:90. |
| Possessor's Liability for Condition or Use of Premises—Standard of Care (Transcript page A-1680—Between the first and second paragraph of the (former) pattern instruction, the court inserts:)Now, I think I'll take judicial notice, and you can, that the presence of Ana Jiminez was reasonably foreseeable because before the plaintiffs moved in, they signed a lease and they listed who would be, in the application, who would be the occupants and that included Ana Jiminez.(Transcript page A-1681—The court inserts the contentions in this case:)The plaintiff claims that the premises were not in a reasonably safe condition because they claim there was elevated levels of lead in the paint and that that paint was peeling, or falling or chipping. Defendant says that's not the case. There was no lead in the paint and therefore if unfortunately it was falling or chipping, that was not a cause or certainly not a substantial cause of the injuries claimed.(Transcript page A-1681—After “permitting the unsafe condition to exist,” the court adds: “and continue, and/or continue.” After discussion of reasonable care, the court adds:)And of course that owner or possessor of land must comply with all the applicable state law and ordinances.(Transcript page A-1682—Regarding whether the presence of the plaintiff was reasonably foreseeable, the court asserts:)I think that's not in controversy. . .we know the plaintiff's presence was foreseeable because, again, she's on the lease application.(Transcript pages A-1682 to 1684—Regarding knowledge of the unsafe condition, the court's language varies from the pattern instruction, but covers all the points of the instruction. The court concludes with:)However, if you find the defendant's negligence was a substantial factor in causing the plaintiff's injury, you then will next proceed to consider the consideration of | Possessor's Liability for Condition or Use of Premises—Standard of Care (Transcript page A-1680—Between the first and second paragraph of the (former) pattern instruction, the court inserts:)Now, I think I'll take judicial notice, and you can, that the presence of Ana Jiminez was reasonably foreseeable because before the plaintiffs moved in, they signed a lease and they listed who would be, in the application, who would be the occupants and that included Ana Jiminez.(Transcript page A-1681—The court inserts the contentions in this case:)The plaintiff claims that the premises were not in a reasonably safe condition because they claim there was elevated levels of lead in the paint and that that paint was peeling, or falling or chipping. Defendant says that's not the case. There was no lead in the paint and therefore if unfortunately it was falling or chipping, that was not a cause or certainly not a substantial cause of the injuries claimed.(Transcript page A-1681—After “permitting the unsafe condition to exist,” the court adds: “and continue, and/or continue.” After discussion of reasonable care, the court adds:)And of course that owner or possessor of land must comply with all the applicable state law and ordinances.(Transcript page A-1682—Regarding whether the presence of the plaintiff was reasonably foreseeable, the court asserts:)I think that's not in controversy. . .we know the plaintiff's presence was foreseeable because, again, she's on the lease application.(Transcript pages A-1682 to 1684—Regarding knowledge of the unsafe condition, the court's language varies from the pattern instruction, but covers all the points of the instruction. The court concludes with:)However, if you find the defendant's negligence was a substantial factor in causing the plaintiff's injury, you then will next proceed to consider the consideration of |
| damages.23. . | damages.23. PJI 1:90.2. |
| [Supplemental Instruction] (Transcript page A-1684—Regarding books, articles, treatises, pamphlets, the court states that:)[E]xperts were called by both sides and that both sides asked their respective experts or asked their opponent's experts whether each recognized various books, articles, treatises and pamphlets as authoritative.(After instructing that such materials are written on medical subjects, the court adds:. . .including lead in paint and lead in the blood.(Transcript page A-1684—In addition to physicians not necessarily recognizing materials as authoritative, the court adds “or PhDs.”; the court inserts that:)[T]he fact that a particular expert, a particular doctor, did not recognize them as authoritative should be used by you in deciding the weight given to that expert's testimony.Author's Note: A newly revised | [Supplemental Instruction] (Transcript page A-1684—Regarding books, articles, treatises, pamphlets, the court states that:)[E]xperts were called by both sides and that both sides asked their respective experts or asked their opponent's experts whether each recognized various books, articles, treatises and pamphlets as authoritative.(After instructing that such materials are written on medical subjects, the court adds:. . .including lead in paint and lead in the blood.(Transcript page A-1684—In addition to physicians not necessarily recognizing materials as authoritative, the court adds “or PhDs.”; the court inserts that:)[T]he fact that a particular expert, a particular doctor, did not recognize them as authoritative should be used by you in deciding the weight given to that expert's testimony.Author's Note: A newly revised |
| PJI 1:90.1 |
| rejects the view stated in this modified instruction. The revised charge provides in part, “Many professional treatises and articles are written, but they are not necessarily recognized as authoritative by all professionals in the field of . . . Therefore, the fact that [state expert witness's name] did not recognize as authoritative some or all of the works listed by (AB's, CD's) lawyer should not be used by you in deciding the weight to be given [state expert witness's name] | rejects the view stated in this modified instruction. The revised charge provides in part, “Many professional treatises and articles are written, but they are not necessarily recognized as authoritative by all professionals in the field of . . . Therefore, the fact that [state expert witness's name] did not recognize as authoritative some or all of the works listed by (AB's, CD's) lawyer should not be used by you in deciding the weight to be given [state expert witness's name] |
| testimony.”24. . | testimony.”24. PJI 2:277. |
| Damages—General (Transcript page A-1685—After “sum of money,” the court adds: “that's American | Damages—General (Transcript page A-1685—After “sum of money,” the court adds: “that's American |
| money.”)25. . | money.”)25. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering (Transcript page A-1686—The court mistakenly inserts “plaintiff” where “defendant” is intended:). . .compensate her for any injury and conscious pain and suffering to date caused by plaintiff.(The court includes circular definition of “awareness,” rather than saying that conscious pain and suffering means that there was some level of awareness:)If there's an issue relative to the plaintiff's awareness, its definition is there must be some awareness by the | Damages—Personal Injury—Injury and Pain and Suffering (Transcript page A-1686—The court mistakenly inserts “plaintiff” where “defendant” is intended:). . .compensate her for any injury and conscious pain and suffering to date caused by plaintiff.(The court includes circular definition of “awareness,” rather than saying that conscious pain and suffering means that there was some level of awareness:)If there's an issue relative to the plaintiff's awareness, its definition is there must be some awareness by the |
| plaintiff.26. . | plaintiff.26. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (enjoyment of life) (Transcript pages A-1686 to 1687—The court adds “or in the future may have” to the instruction on the compensable period. Regarding the compensable period in the past, the court states that it is:). . .from the time you find that the defendant was notified to this date of June 27, 2001. I think the date appears to be from the evidence and the thrust of the questions, is the date of notice, is on or before December 24 of ‘94 I believe. If I'm incorrect on that date, I'm sure counsel will let me know. All | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (enjoyment of life) (Transcript pages A-1686 to 1687—The court adds “or in the future may have” to the instruction on the compensable period. Regarding the compensable period in the past, the court states that it is:). . .from the time you find that the defendant was notified to this date of June 27, 2001. I think the date appears to be from the evidence and the thrust of the questions, is the date of notice, is on or before December 24 of ‘94 I believe. If I'm incorrect on that date, I'm sure counsel will let me know. All |
| right.27. . | right.27. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (income | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (income |
| taxes)28. . | taxes)28. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering (Transcript page A-1687—The court returns to past pain and suffering, and sets a different start date from that in instruction 26:)Now, the plaintiff is claiming past pain and suffering. That is, from the date that the City Housing Authority knew or should have known by the exercise of reasonable care. And it appears, my understanding is, that's on or before December 24, 1995. I will correct it if that is not correct. From that date to this date of June 27, 2001.(Transcript page A-1699 to 1702—Note that the plaintiffs' attorney, after the conclusion of the court's charges, disputed that a start date should be provided. Rather, he contended that damages should start at the time when the defendant had constructive notice, and that the jury should decide that date. The court noted that exception, and changed the charge, at Instruction | Damages—Personal Injury—Injury and Pain and Suffering (Transcript page A-1687—The court returns to past pain and suffering, and sets a different start date from that in instruction 26:)Now, the plaintiff is claiming past pain and suffering. That is, from the date that the City Housing Authority knew or should have known by the exercise of reasonable care. And it appears, my understanding is, that's on or before December 24, 1995. I will correct it if that is not correct. From that date to this date of June 27, 2001.(Transcript page A-1699 to 1702—Note that the plaintiffs' attorney, after the conclusion of the court's charges, disputed that a start date should be provided. Rather, he contended that damages should start at the time when the defendant had constructive notice, and that the jury should decide that date. The court noted that exception, and changed the charge, at Instruction |
| 38.)29. . | 38.)29. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages A-1687 to 1689—The court's instruction diverges considerably from the pattern instruction:)Now, the plaintiff is claiming that the injuries are going to be permanent, that is, for the rest of her life expectancy. And for that nobody knows how long you are going to live or anybody is going to live. It could be one hour, one day, or umpteen years. So, in order to make some intelligent determination, we have to look to the latest life expectancy tables. And, according to this volume published in 2001, the statistics are based upon information from the National Center for Health Statistics Vital Statistics in the United States Volume 47, Number 28, dated December 13, 1999. So, I don't know whether the life expectancy has changed appreciably in the last year and-a-half.Ana I believe was born in 1989, was it, in June of 1989. Therefore she is 12 years old at this time. According to the latest tables as I read it, the life expectancy from 12 to 13 is 62.3 years. That's Table Two Life—no, I'm sorry. Strike that. It says males. Women are still living longer. The life expectancy from 12 to 13 for females is 68 years. Glad I picked that up. 68 years. All right.In this regard, as I said, we don't know how long anybody is going to live especially in this uncertain city and this uncertain day and age. So, you have to consider in determining the period of time if you find there is a—that Ana, if you find there is a permanent injury, can be expected to live. In calculating that, I gave you the latest statistical average of 68 years which neither guarantees Ana will live an additional amount of years, that is, 68 more years into the age of 80, or it means she will not live for a longer period. The expectancy figure given you is not binding upon you. You have to determine it. It may be considered by you together with your own experience and the evidence you have heard concerning the condition of Ana's health, her habits, her life-style, and activities that she has, so far in the first 12 years, has conducted. And obviously you have to take into consideration her entire home environment, her family, her school environment and whatever experience you have heard about in this trial about her activities in deciding what her life expectancy | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages A-1687 to 1689—The court's instruction diverges considerably from the pattern instruction:)Now, the plaintiff is claiming that the injuries are going to be permanent, that is, for the rest of her life expectancy. And for that nobody knows how long you are going to live or anybody is going to live. It could be one hour, one day, or umpteen years. So, in order to make some intelligent determination, we have to look to the latest life expectancy tables. And, according to this volume published in 2001, the statistics are based upon information from the National Center for Health Statistics Vital Statistics in the United States Volume 47, Number 28, dated December 13, 1999. So, I don't know whether the life expectancy has changed appreciably in the last year and-a-half.Ana I believe was born in 1989, was it, in June of 1989. Therefore she is 12 years old at this time. According to the latest tables as I read it, the life expectancy from 12 to 13 is 62.3 years. That's Table Two Life—no, I'm sorry. Strike that. It says males. Women are still living longer. The life expectancy from 12 to 13 for females is 68 years. Glad I picked that up. 68 years. All right.In this regard, as I said, we don't know how long anybody is going to live especially in this uncertain city and this uncertain day and age. So, you have to consider in determining the period of time if you find there is a—that Ana, if you find there is a permanent injury, can be expected to live. In calculating that, I gave you the latest statistical average of 68 years which neither guarantees Ana will live an additional amount of years, that is, 68 more years into the age of 80, or it means she will not live for a longer period. The expectancy figure given you is not binding upon you. You have to determine it. It may be considered by you together with your own experience and the evidence you have heard concerning the condition of Ana's health, her habits, her life-style, and activities that she has, so far in the first 12 years, has conducted. And obviously you have to take into consideration her entire home environment, her family, her school environment and whatever experience you have heard about in this trial about her activities in deciding what her life expectancy |
| is.30. . | is.30. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In General (Transcript pages A-1689 to 1691—The court's instruction diverges considerably from pattern instruction:)Now, Ana is only 12 years old. So, she hasn't worked yet. So, she cannot claim loss of any—past loss of earnings. She can only claim possible future loss of earnings. And in this regard you have heard two economists testify. And obviously they have different conclusions they come to. And you are to evaluate each of them and the assumptions and the factors that each made in reaching their conclusions. If you find that as a result of—those injuries Ana has suffered resulted in reduction of her capacity to earn money in the future, Ana is entitled to the reimbursement for loss of future earnings.Now, again we use another statistic. And I think the Court has indicated that her work expectancy as distinct from her life expectancy is 27.7 years. Again, you cannot make the calculations by speculation.You must determine, A, the number of years she can be expected to work. I gave you the average of 27.7. And the amount you find Ana would have earned had she not, or will she, if you find that she will be disabled, had she not been disabled.Again, you've heard many numbers, you've heard the life expectancy and you've heard certain assumptions as to the amount that she has lost as a result of her disability. What she is claiming is the loss of earnings.I don't think there is much dispute that Ana will be able to work at something, doing something at whatever she is skilled at as a result of her experience and her school education and whatever home and social environment and skills she picks up.What you have to determine is the decrease in that future earning ability from what she normally would have earned had—if you find there was elevated lead levels, there's substantial factor in bringing about the injury—what she would have earned had there not been any elevated blood levels if you so find and what she in fact will earn as a result thereof.You must determine also the length of time that you find Ana would reasonably be expected to work had she not been injured and the nature and hazards of whatever employment that she's able to secure and any other circumstances that have an affect on her future earning capacity.Again, the 27.7 life expectancy years is a statistic and it's nothing more and neither assure that Ana will have a working life as long as mentioned or greater.The 27.7 number is not binding upon you, but may be considered by you together with your own common sense, life experience and the evidence you have heard in determining what Ana's life work expectancy is.You will fix the dollar amount. You will fix the period of time it covers. That is, the reduction of her earning capacity. And there will be, if you reach that question, a blank for the amount and a blank for the number of years.Do not state an amount per year, but the total amount for the entire period if you so find.Author's Comment: Court and counsel are not bound by the mortality and work life expectancy tables contained in NY PJI, at 1B NY PJI3d, at 1038 to 1046 (2018); expert testimony or more recent governmental tables may be used, subject to the usual rules pertaining to expert testimony or judicial notice.(The court omits: “In your verdict you will state separately the amount awarded for loss of earnings to date, if any, and, if you make an award for loss of future earnings, you will state in your verdict the amount awarded and the period of years over which such award is intended to provide | Damages—Personal Injury—Loss of Earnings—In General (Transcript pages A-1689 to 1691—The court's instruction diverges considerably from pattern instruction:)Now, Ana is only 12 years old. So, she hasn't worked yet. So, she cannot claim loss of any—past loss of earnings. She can only claim possible future loss of earnings. And in this regard you have heard two economists testify. And obviously they have different conclusions they come to. And you are to evaluate each of them and the assumptions and the factors that each made in reaching their conclusions. If you find that as a result of—those injuries Ana has suffered resulted in reduction of her capacity to earn money in the future, Ana is entitled to the reimbursement for loss of future earnings.Now, again we use another statistic. And I think the Court has indicated that her work expectancy as distinct from her life expectancy is 27.7 years. Again, you cannot make the calculations by speculation.You must determine, A, the number of years she can be expected to work. I gave you the average of 27.7. And the amount you find Ana would have earned had she not, or will she, if you find that she will be disabled, had she not been disabled.Again, you've heard many numbers, you've heard the life expectancy and you've heard certain assumptions as to the amount that she has lost as a result of her disability. What she is claiming is the loss of earnings.I don't think there is much dispute that Ana will be able to work at something, doing something at whatever she is skilled at as a result of her experience and her school education and whatever home and social environment and skills she picks up.What you have to determine is the decrease in that future earning ability from what she normally would have earned had—if you find there was elevated lead levels, there's substantial factor in bringing about the injury—what she would have earned had there not been any elevated blood levels if you so find and what she in fact will earn as a result thereof.You must determine also the length of time that you find Ana would reasonably be expected to work had she not been injured and the nature and hazards of whatever employment that she's able to secure and any other circumstances that have an affect on her future earning capacity.Again, the 27.7 life expectancy years is a statistic and it's nothing more and neither assure that Ana will have a working life as long as mentioned or greater.The 27.7 number is not binding upon you, but may be considered by you together with your own common sense, life experience and the evidence you have heard in determining what Ana's life work expectancy is.You will fix the dollar amount. You will fix the period of time it covers. That is, the reduction of her earning capacity. And there will be, if you reach that question, a blank for the amount and a blank for the number of years.Do not state an amount per year, but the total amount for the entire period if you so find.Author's Comment: Court and counsel are not bound by the mortality and work life expectancy tables contained in NY PJI, at 1B NY PJI3d, at 1038 to 1046 (2018); expert testimony or more recent governmental tables may be used, subject to the usual rules pertaining to expert testimony or judicial notice.(The court omits: “In your verdict you will state separately the amount awarded for loss of earnings to date, if any, and, if you make an award for loss of future earnings, you will state in your verdict the amount awarded and the period of years over which such award is intended to provide |
| compensation.”)31. . | compensation.”)31. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (Transcript pages A-1692 to 1693—The court's instruction diverges considerably from pattern instruction:)Now, in addition to pain and suffering, reduction of loss of earnings, the plaintiff is claiming reasonable future expenses for therapy.Is that speech therapy?MR. GITTIN: Yes.THE COURT: Speech therapy and medical monitoring. In this regard, you have heard testimony certainly by the economist.And was there any other testimony by any of the other experts?MR. GITTIN: The teacher. Well, the teacher concerning academic tutoring.THE COURT: And, the teacher, is that Ms. Suarez?MR. GITTIN: Yes.THE COURT: You are—obviously you have to consider that testimony and determine what if any would be the—you have to determine whether that will be necessary as a result and—as a result of—substantial factor of the injuries. And if so, what are the fair and reasonable values for those rehabilitation services, i.e., speech therapy and medical monitoring and you must state that.We have put it under the label of medical expenses even though speech therapy is not literally a medical expense. But it's a rehabilitative service. And again the number of years you so find must also be | Damages—Personal Injury—Expenses Incurred (Transcript pages A-1692 to 1693—The court's instruction diverges considerably from pattern instruction:)Now, in addition to pain and suffering, reduction of loss of earnings, the plaintiff is claiming reasonable future expenses for therapy.Is that speech therapy?MR. GITTIN: Yes.THE COURT: Speech therapy and medical monitoring. In this regard, you have heard testimony certainly by the economist.And was there any other testimony by any of the other experts?MR. GITTIN: The teacher. Well, the teacher concerning academic tutoring.THE COURT: And, the teacher, is that Ms. Suarez?MR. GITTIN: Yes.THE COURT: You are—obviously you have to consider that testimony and determine what if any would be the—you have to determine whether that will be necessary as a result and—as a result of—substantial factor of the injuries. And if so, what are the fair and reasonable values for those rehabilitation services, i.e., speech therapy and medical monitoring and you must state that.We have put it under the label of medical expenses even though speech therapy is not literally a medical expense. But it's a rehabilitative service. And again the number of years you so find must also be |
| included.32. . | included.32. PJI 1:28. |
| Conclusion (Transcript page A-1693—The court notes that “it took longer than expected.” The court notes that deliberations will probably not start until the next day. Regarding the foreperson, the court states:)First order of business is to elect a foreperson. Traditionally although not mandatory, traditionally most of the time Juror Number One acts as a foreperson. And, if that—Number One wants to be the foreperson, in almost every situation, he or she is. However, there are people who would rather not be given such individual attention or be focused upon or be in any way pressured of being the spokesperson for a group and they choose not to so serve. But that's up to each of you and Juror Number One.(Transcript page A-1694—Regarding the power of the foreperson, the court states:)The foreperson has no greater power, just a little greater responsibility. His or her vote is not entitled to any greater weight than any other juror. Simply to see that you have whatever you need, your supplies, your exhibits. If there's a question to be posed, to articulate it or supervise its articulation. And of course stand and read it to the Court. And obviously see that the jury interrogatory sheet is completed and signed properly and to read the verdict.(Transcript page A-1694—Regarding the jurors' duty, the court adds:)Not only doing your civic duty, but it's giving the parties due process of law and their day in court.(Transcript page A-1694—The court inserts reminder of the five-sixths rule:)Remember, five of the six of you, any five of the six of you on any question is sufficient under the law. . .(Transcript page A-1695—After stating that jurors must decide the case for themselves, the court adds:). . .and not simply to assent, to go along, to get along. . ..(Transcript page A-1695—After stating that this is an important matter for the parties, the court adds:)If they could have resolved the issues before, they would | Conclusion (Transcript page A-1693—The court notes that “it took longer than expected.” The court notes that deliberations will probably not start until the next day. Regarding the foreperson, the court states:)First order of business is to elect a foreperson. Traditionally although not mandatory, traditionally most of the time Juror Number One acts as a foreperson. And, if that—Number One wants to be the foreperson, in almost every situation, he or she is. However, there are people who would rather not be given such individual attention or be focused upon or be in any way pressured of being the spokesperson for a group and they choose not to so serve. But that's up to each of you and Juror Number One.(Transcript page A-1694—Regarding the power of the foreperson, the court states:)The foreperson has no greater power, just a little greater responsibility. His or her vote is not entitled to any greater weight than any other juror. Simply to see that you have whatever you need, your supplies, your exhibits. If there's a question to be posed, to articulate it or supervise its articulation. And of course stand and read it to the Court. And obviously see that the jury interrogatory sheet is completed and signed properly and to read the verdict.(Transcript page A-1694—Regarding the jurors' duty, the court adds:)Not only doing your civic duty, but it's giving the parties due process of law and their day in court.(Transcript page A-1694—The court inserts reminder of the five-sixths rule:)Remember, five of the six of you, any five of the six of you on any question is sufficient under the law. . .(Transcript page A-1695—After stating that jurors must decide the case for themselves, the court adds:). . .and not simply to assent, to go along, to get along. . ..(Transcript page A-1695—After stating that this is an important matter for the parties, the court adds:)If they could have resolved the issues before, they would |
| have.33. . | have.33. PJI 1:11. |
| Discussion With Others—Independent Research (Transcript page A-1705—Before dismissing the jury for the day, the court instructs:)Do not discuss the case among yourselves or with anyone else. If any third party discusses the case with you, report that or any relevant fact directly to the Court or the court officer. Do not visit 2101 Madison Avenue. And that's Apartment 10-A. And of course have no conversations, communication, verbal or otherwise with any of the parties, witnesses or trial counsel about this case or anything else in this courtroom or anywhere | Discussion With Others—Independent Research (Transcript page A-1705—Before dismissing the jury for the day, the court instructs:)Do not discuss the case among yourselves or with anyone else. If any third party discusses the case with you, report that or any relevant fact directly to the Court or the court officer. Do not visit 2101 Madison Avenue. And that's Apartment 10-A. And of course have no conversations, communication, verbal or otherwise with any of the parties, witnesses or trial counsel about this case or anything else in this courtroom or anywhere |
| else.34. . | else.34. PJI 2:25. |
| Statutory Standard of Care—Statute of General Application (Transcript page A-1708 to 1709—The next day, the court returns to this discussion, upon request of the plaintiff's counsel:)As to the statute, if you find that there was a violation of the statute and that violation was a proximate cause or a substantial factor of the injury to Anna Jiminez in this case, then the defendants are liable.Now, the statute that the plaintiff claims defendant violated involves—I think it's Section—Public Health Law Section 1370. There were two subdivisions, three and six. I have them here.Public Health Law Section 1370, Subdivision 3 states—defines:A condition conducive to lead poisoning means paint or other similar surface-coating material containing lead in a condition accessible for ingestion or inhalation or where peeling or chipping of the paint or other similar surface-coating material occurs or is likely to occur. And other environmental conditions which may result in significant lead exposure.And this condition must be in a dwelling including a child under the age of seven years old. That's subdivision 3.Subdivision 6 says—defines:Elevated lead levels. That means a blood lead level greater than or equal to 10 micrograms of lead per deciliter of whole blood or such blood lead level as may be established by the department—I believe this is the New York City Department of Health and—Health and Housing Preservation?MR. GITTIN: No, Judge.THE COURT: Well, whatever it is.MR. GITTIN: The department is the—you're talking about the State Department of Health.THE COURT: I'm sorry. In this case you're right. In this case is the State Department of Health.So, you would have to find, A, there was a violation, and, B, owing to that violation, it was a substantial factor in bringing about the injuries plaintiff claims to have suffered. That's the violation of | Statutory Standard of Care—Statute of General Application (Transcript page A-1708 to 1709—The next day, the court returns to this discussion, upon request of the plaintiff's counsel:)As to the statute, if you find that there was a violation of the statute and that violation was a proximate cause or a substantial factor of the injury to Anna Jiminez in this case, then the defendants are liable.Now, the statute that the plaintiff claims defendant violated involves—I think it's Section—Public Health Law Section 1370. There were two subdivisions, three and six. I have them here.Public Health Law Section 1370, Subdivision 3 states—defines:A condition conducive to lead poisoning means paint or other similar surface-coating material containing lead in a condition accessible for ingestion or inhalation or where peeling or chipping of the paint or other similar surface-coating material occurs or is likely to occur. And other environmental conditions which may result in significant lead exposure.And this condition must be in a dwelling including a child under the age of seven years old. That's subdivision 3.Subdivision 6 says—defines:Elevated lead levels. That means a blood lead level greater than or equal to 10 micrograms of lead per deciliter of whole blood or such blood lead level as may be established by the department—I believe this is the New York City Department of Health and—Health and Housing Preservation?MR. GITTIN: No, Judge.THE COURT: Well, whatever it is.MR. GITTIN: The department is the—you're talking about the State Department of Health.THE COURT: I'm sorry. In this case you're right. In this case is the State Department of Health.So, you would have to find, A, there was a violation, and, B, owing to that violation, it was a substantial factor in bringing about the injuries plaintiff claims to have suffered. That's the violation of |
| statute.35. . | statute.35. PJI 2:29. |
| Statutory Standard of Care—Ordinances or Regulations (Transcript page A-1709 to 1713—The court returns to discussion of ordinances and regulations.)In addition, the plaintiff says there are various ordinances or regulations. Now, the difference between a statute, a statute covers the whole State of New York. An ordinance or regulation covers a locality. In this case it would be the City of New York.Plaintiff claims that the defendant violated various City ordinances or regulations. If you find the defendant violated any of those ordinances, you may consider that violation as some evidence of negligence along with the other evidence in the case provided that violation was a substantial factor in bringing about the injury, plaintiff's injury.Now what were the City ordinances that the plaintiff claims?One, was Section 11-04 of the rules of the New York City Department of Housing Preservation and Development. That's the correct name.Section 11-04 provides:The paint or other similar surface-coating material as provided in Section 11-01, which defines that as having a reading of 0.7 milligrams of lead per square centimeter or greater, then they talk about metallic lead based. I don't think that applies here. All right.So, it's paint and other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter in a multiple dwelling, in a residence in which a child or children of seven years of age and under reside. And if so, that can be an immediately hazardous violation and subject the owner to penalties under the Housing maintenance code.But we're here to determine whether there's liability.So, the paint or other similar surface-coating material in Section 11-01, that is, having a reading of 0.7 milligrams of lead per square centimeter or greater in a dwelling having a child or children under seven years of age shall be covered by applying dry wall construction, or in the alternative, surface-coating material may be removed by scraping all loose paint and providing plaster weld or other bonding agent and applying two coats of paint.Where the condition is recurring, that is, repetitive, and there is evidence of continued moisture, the alternative method, that is, the scraping all loose paint and providing plaster and applying two coats of paint, will not be acceptable. So, therefore it should be covered by applying dry wall construction.It's for you to determine whether it was a recurring condition and that there was evidence of continued moisture. Whether the alternative had not been—was not acceptable under this code.So, if there's a violation of this, that's some evidence of negligence. And, if that violation was a substantial factor in bringing about the injury, you can hold the defendant liable.That's one section. Another is Section 27-2013 of the New York City administrative code. Subdivision h, Sub-subdivisions 1, 2 and 3. Sub-subdivision 1 states:The owner of a multiple dwelling shall remove or cover in a manner approved by the department—Now is this Housing and—MR. GITTIN: Yes, HPD.THE COURT: HPD. This is a parallel section to the one I just read.—any paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter or greater. And then it speaks about the 0.5 metallic lead based. I don't think that applies here. Skip that.—having a reading of 0.7 milligrams of lead per square centimeter or greater in the interior walls, ceilings, doors, windowsills or moldings in any dwelling in which a child or children of seven years of age or under reside.That's Subdivision 1.In any multiple dwelling, which is the Housing project, erected prior to January 1, 1960, which is the case in our situation, in which paint or other similar surface-coating material is found to be peeling on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child or children seven years of age or under reside, it shall be presumed that the peeling substance contains a reading of 0.7 milligrams per square centimeter or greater.Subdivision 3:The existence of paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter or greater on the non-volatile content of the paint or other similar surface-coating material in the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child or children of seven years of age or under reside, shall constitute, and we mentioned this before, an immediately hazardous violation and subject the owner to certain penalties for a violation of the Housing Maintenance | Statutory Standard of Care—Ordinances or Regulations (Transcript page A-1709 to 1713—The court returns to discussion of ordinances and regulations.)In addition, the plaintiff says there are various ordinances or regulations. Now, the difference between a statute, a statute covers the whole State of New York. An ordinance or regulation covers a locality. In this case it would be the City of New York.Plaintiff claims that the defendant violated various City ordinances or regulations. If you find the defendant violated any of those ordinances, you may consider that violation as some evidence of negligence along with the other evidence in the case provided that violation was a substantial factor in bringing about the injury, plaintiff's injury.Now what were the City ordinances that the plaintiff claims?One, was Section 11-04 of the rules of the New York City Department of Housing Preservation and Development. That's the correct name.Section 11-04 provides:The paint or other similar surface-coating material as provided in Section 11-01, which defines that as having a reading of 0.7 milligrams of lead per square centimeter or greater, then they talk about metallic lead based. I don't think that applies here. All right.So, it's paint and other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter in a multiple dwelling, in a residence in which a child or children of seven years of age and under reside. And if so, that can be an immediately hazardous violation and subject the owner to penalties under the Housing maintenance code.But we're here to determine whether there's liability.So, the paint or other similar surface-coating material in Section 11-01, that is, having a reading of 0.7 milligrams of lead per square centimeter or greater in a dwelling having a child or children under seven years of age shall be covered by applying dry wall construction, or in the alternative, surface-coating material may be removed by scraping all loose paint and providing plaster weld or other bonding agent and applying two coats of paint.Where the condition is recurring, that is, repetitive, and there is evidence of continued moisture, the alternative method, that is, the scraping all loose paint and providing plaster and applying two coats of paint, will not be acceptable. So, therefore it should be covered by applying dry wall construction.It's for you to determine whether it was a recurring condition and that there was evidence of continued moisture. Whether the alternative had not been—was not acceptable under this code.So, if there's a violation of this, that's some evidence of negligence. And, if that violation was a substantial factor in bringing about the injury, you can hold the defendant liable.That's one section. Another is Section 27-2013 of the New York City administrative code. Subdivision h, Sub-subdivisions 1, 2 and 3. Sub-subdivision 1 states:The owner of a multiple dwelling shall remove or cover in a manner approved by the department—Now is this Housing and—MR. GITTIN: Yes, HPD.THE COURT: HPD. This is a parallel section to the one I just read.—any paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter or greater. And then it speaks about the 0.5 metallic lead based. I don't think that applies here. Skip that.—having a reading of 0.7 milligrams of lead per square centimeter or greater in the interior walls, ceilings, doors, windowsills or moldings in any dwelling in which a child or children of seven years of age or under reside.That's Subdivision 1.In any multiple dwelling, which is the Housing project, erected prior to January 1, 1960, which is the case in our situation, in which paint or other similar surface-coating material is found to be peeling on the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child or children seven years of age or under reside, it shall be presumed that the peeling substance contains a reading of 0.7 milligrams per square centimeter or greater.Subdivision 3:The existence of paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter or greater on the non-volatile content of the paint or other similar surface-coating material in the interior walls, ceilings, doors, windowsills or moldings in any dwelling unit in which a child or children of seven years of age or under reside, shall constitute, and we mentioned this before, an immediately hazardous violation and subject the owner to certain penalties for a violation of the Housing Maintenance |
| Code.36. . | Code.36. PJI 1:63. |
| General Instruction—Burden of Proof—Effect of Presumption (Transcript pages A-1713 to 1714—The court returns to instruction on the effect of the presumption raised by the ordinance:)Now, the presumption established in Paragraph 2 that I just read may be rebutted by the owner of the multiple dwelling. Such proof shall be in form and substance acceptable to a court of competent jurisdiction. That's this.Now, let's talk about this presumption.First you must find that there was a reading of 0.7 milligrams of lead per square centimeter or greater.MR. GITTIN: Objection. I need to approach if you would.THE COURT: No, we're not going to approach.MR. GITTIN: All right.THE COURT: Now, if there is evidence supporting such a finding, that evidence, because we know there was a child under seven years of age and it was a multiple dwelling, shall be a presumption of the reading of 0.7 milligrams of lead per square centimeter. So, if you have peeling paint under this statute in a dwelling unit which a child or children of seven years or under reside, there is a rebuttable presumption that it contains 0.7 milligrams of lead per square centimeter or greater. So, if you have a finding of peeling paint, there is a rebuttal presumption that it contains 0.7 milligrams of lead per square centimeter.However, that presumption is against the defendant. However, the defendant can rebut or overcome that presumption by substantial evidence to the contrary.So, you have to decide, A, was there peeling paint that triggers this rebuttable presumption of 0.7 milligrams of lead per square centimeter or greater. And, B, did the defendant overcome it by substantial evidence.What is substantial? It's up to you to decide. You must consider all the evidence including that presumption. All right.Author's Comment: As to | General Instruction—Burden of Proof—Effect of Presumption (Transcript pages A-1713 to 1714—The court returns to instruction on the effect of the presumption raised by the ordinance:)Now, the presumption established in Paragraph 2 that I just read may be rebutted by the owner of the multiple dwelling. Such proof shall be in form and substance acceptable to a court of competent jurisdiction. That's this.Now, let's talk about this presumption.First you must find that there was a reading of 0.7 milligrams of lead per square centimeter or greater.MR. GITTIN: Objection. I need to approach if you would.THE COURT: No, we're not going to approach.MR. GITTIN: All right.THE COURT: Now, if there is evidence supporting such a finding, that evidence, because we know there was a child under seven years of age and it was a multiple dwelling, shall be a presumption of the reading of 0.7 milligrams of lead per square centimeter. So, if you have peeling paint under this statute in a dwelling unit which a child or children of seven years or under reside, there is a rebuttable presumption that it contains 0.7 milligrams of lead per square centimeter or greater. So, if you have a finding of peeling paint, there is a rebuttal presumption that it contains 0.7 milligrams of lead per square centimeter.However, that presumption is against the defendant. However, the defendant can rebut or overcome that presumption by substantial evidence to the contrary.So, you have to decide, A, was there peeling paint that triggers this rebuttable presumption of 0.7 milligrams of lead per square centimeter or greater. And, B, did the defendant overcome it by substantial evidence.What is substantial? It's up to you to decide. You must consider all the evidence including that presumption. All right.Author's Comment: As to |
| PJI 1:63 |
| and | and |
| the |
| necessity of “substantial evidence” to rebut or overcome a presumption, see the Author's Comment following charge no. 20, | necessity of “substantial evidence” to rebut or overcome a presumption, see the Author's Comment following charge no. 20, |
| above.37. . | above.37. PJI 2:25. |
| Statutory Standard of Care—Statute of General Application (Transcript pages A-1715 to 1716—The court returns to discussion of statutes:)There's another ordinance. And that is part of the New York State statutory code. It's Section 21.21. That states floors, interior walls, doors and ceilings shall be sound and in good repair and that lead based and other toxic paints and materials shall not be used on any inferior surface or any surface readily accessible to children as of January 23rd 1973. It also refers to lead poisoning, that existing paint conditions conducive to lead poisoning shall be eliminated in accordance with the Public Health Law.All right. I think I've read you the statutes and the law that applies to that | Statutory Standard of Care—Statute of General Application (Transcript pages A-1715 to 1716—The court returns to discussion of statutes:)There's another ordinance. And that is part of the New York State statutory code. It's Section 21.21. That states floors, interior walls, doors and ceilings shall be sound and in good repair and that lead based and other toxic paints and materials shall not be used on any inferior surface or any surface readily accessible to children as of January 23rd 1973. It also refers to lead poisoning, that existing paint conditions conducive to lead poisoning shall be eliminated in accordance with the Public Health Law.All right. I think I've read you the statutes and the law that applies to that |
| statute.38. . | statute.38. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering (Transcript page A-1716—The court returns to this discussion in order to correct Instruction 28, and allow the jury to decide when the defendant should have realized the lead paint condition.)In the interrogatory there's reference to a date in several questions on or before 12-24-94 at which point there is evidence that the plaintiff may have been notified, may not. It's up to you to decide.If you reach the question of past damages, then the measure of damages goes from the point when the plaintiff actually was or should have been—should have realized there was a condition under all the evidence that you adduced, that the plaintiff as a reasonably prudent owner or possessor of the land should have been aware that there were the conditions that the plaintiff claims violated the duties of an owner or a possessor of land or violated the statutes or ordinances. Okay.(Transcript pages A-1718 to 1742—Further discussion between the court and attorneys ensues, discussing the interpretation of Ana Jiminez's test scores which are in evidence, and whether the jury is permitted to stipulate the amounts of tutoring, speech therapy and medical expenses. The court allows the jury to itemize these amounts.)C. Case Documents Available on Westlaw1.On appeal: Jiminez v. City of New York, 7 A.D.3d 268, 775 N.Y.S.2d 530 (1st Dep't 2004) (affirming verdict)Jury Instruction, 2001 WL 34899278Verdict, Agreement and Settlement (Jury Interrogatories), | Damages—Personal Injury—Injury and Pain and Suffering (Transcript page A-1716—The court returns to this discussion in order to correct Instruction 28, and allow the jury to decide when the defendant should have realized the lead paint condition.)In the interrogatory there's reference to a date in several questions on or before 12-24-94 at which point there is evidence that the plaintiff may have been notified, may not. It's up to you to decide.If you reach the question of past damages, then the measure of damages goes from the point when the plaintiff actually was or should have been—should have realized there was a condition under all the evidence that you adduced, that the plaintiff as a reasonably prudent owner or possessor of the land should have been aware that there were the conditions that the plaintiff claims violated the duties of an owner or a possessor of land or violated the statutes or ordinances. Okay.(Transcript pages A-1718 to 1742—Further discussion between the court and attorneys ensues, discussing the interpretation of Ana Jiminez's test scores which are in evidence, and whether the jury is permitted to stipulate the amounts of tutoring, speech therapy and medical expenses. The court allows the jury to itemize these amounts.)C. Case Documents Available on Westlaw1.On appeal: Jiminez v. City of New York, 7 A.D.3d 268, 775 N.Y.S.2d 530 (1st Dep't 2004) (affirming verdict)Jury Instruction, 2001 WL 34899278Verdict, Agreement and Settlement (Jury Interrogatories), |
| 2.Sample | 2001 WL 348992702.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:5 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:5 Premises |
| liability/Construction ramp collapse; crushed finger/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Crushed fingerCase Name: John Clark, on behalf of Ryan Clark, a minor, Plaintiff, v. Interlaken Owners, Inc., and Andem Construction, Inc., d/b/a Malco Construction, Defendants.Judge: Sheila Abdus-SalaamDocket Number: 106915/97Verdict Date: January 28, 2000Outcome: $50,000 verdict; Plaintiff found 75% comparatively negligent; judgment entered for $15,667.88. On appeal, reversed and remanded for new trial because doctrine of assumption of risk not applicable in this situation, and jury should not have been instructed on this doctrine.Brief Summary of Facts: A male minor suffered a crushed finger when a construction ramp collapsed on him while he was playing at Defendant-owned construction site. Plaintiff contended that Defendants failed to properly maintain and secure the construction ramps and that the premises were left in an unsafe condition. Defendants denied liability and contended that the premises were properly maintained and secured, that the tenants were notified to avoid the construction site and that the minor should not have been allowed to enter the area.B. Jury Instructions Given by the | liability/Construction ramp collapse; crushed finger/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Crushed fingerCase Name: John Clark, on behalf of Ryan Clark, a minor, Plaintiff, v. Interlaken Owners, Inc., and Andem Construction, Inc., d/b/a Malco Construction, Defendants.Judge: Sheila Abdus-SalaamDocket Number: 106915/97Verdict Date: January 28, 2000Outcome: $50,000 verdict; Plaintiff found 75% comparatively negligent; judgment entered for $15,667.88. On appeal, reversed and remanded for new trial because doctrine of assumption of risk not applicable in this situation, and jury should not have been instructed on this doctrine.Brief Summary of Facts: A male minor suffered a crushed finger when a construction ramp collapsed on him while he was playing at Defendant-owned construction site. Plaintiff contended that Defendants failed to properly maintain and secure the construction ramps and that the premises were left in an unsafe condition. Defendants denied liability and contended that the premises were properly maintained and secured, that the tenants were notified to avoid the construction site and that the minor should not have been allowed to enter the area.B. Jury Instructions Given by the |
| Court1. . | Court1. PJI 1:20. |
| Introduction (Transcript page 636—The court adds:)My charge is divided into two parts; first, a general statement of the law applicable to all jury trials in civil cases and then, second, a statement of the law which applies particularly to the claims | Introduction (Transcript page 636—The court adds:)My charge is divided into two parts; first, a general statement of the law applicable to all jury trials in civil cases and then, second, a statement of the law which applies particularly to the claims |
| here.2. . | here.2. PJI 1:21. |
| Review Principles Stated / | Review Principles Stated / |
| . | PJI 1:41. |
| Weighing Testimony (Transcript page 637—The court combines these two instruction. After | Weighing Testimony (Transcript page 637—The court combines these two instruction. After |
| 's | PJI 1:20's |
| “you may not draw any inference from an unanswered question, nor consider testimony which has been stricken from the record, in reaching your decision,” the court switches to | “you may not draw any inference from an unanswered question, nor consider testimony which has been stricken from the record, in reaching your decision,” the court switches to |
| :)I | PJI 1:41:)I |
| also mentioned, jurors, finally, that you do not have to accept all of the evidence that I shall admit; and in deciding what evidence you will accept, you must make your evaluation—your own evaluation—of the testimony given by each of the witnesses and decide how much weight you choose to give to that testimony.I mentioned that the testimony of a witness may not conform to the facts as they occurred because the witness is intentionally lying, or because the witness did not see or hear what he or she testified about, because the witness' recollection is faulty, or because the witness did not express herself or himself clearly in testifying.(Transcript page 638—The court then finishes | also mentioned, jurors, finally, that you do not have to accept all of the evidence that I shall admit; and in deciding what evidence you will accept, you must make your evaluation—your own evaluation—of the testimony given by each of the witnesses and decide how much weight you choose to give to that testimony.I mentioned that the testimony of a witness may not conform to the facts as they occurred because the witness is intentionally lying, or because the witness did not see or hear what he or she testified about, because the witness' recollection is faulty, or because the witness did not express herself or himself clearly in testifying.(Transcript page 638—The court then finishes |
| , | PJI 1:21, |
| before returning to | before returning to |
| :)I | PJI 1:41:)I |
| mentioned, jurors, that if it appears that there is a discrepancy in the evidence, you would have to consider whether the apparent discrepancy can be reconciled by fitting two or more versions of the event together, and that if that was not possible, then you would have to decide which of those conflicting versions you will | mentioned, jurors, that if it appears that there is a discrepancy in the evidence, you would have to consider whether the apparent discrepancy can be reconciled by fitting two or more versions of the event together, and that if that was not possible, then you would have to decide which of those conflicting versions you will |
| accept.3. . | accept.3. PJI 1:90. |
| General Instruction—Expert Witness (Transcript page 638—The court specifies who the expert witnesses are before delivering the instruction:)Now, jurors, with respect to the witnesses, you will recall that Daniel Burdett, Dr. Frederick Valauri and Dr. James Dickson testified concerning their qualifications as experts in their respective fields.Now, Mr. Burdett was qualified as an accident-reconstruction and construction-site-safety expert; Dr. Valauri, in the field of plastic surgery, with a specialty in hand surgery; and Dr. Dickson in orthopedic surgery, and that each of them gave his opinion concerning the issues in this | General Instruction—Expert Witness (Transcript page 638—The court specifies who the expert witnesses are before delivering the instruction:)Now, jurors, with respect to the witnesses, you will recall that Daniel Burdett, Dr. Frederick Valauri and Dr. James Dickson testified concerning their qualifications as experts in their respective fields.Now, Mr. Burdett was qualified as an accident-reconstruction and construction-site-safety expert; Dr. Valauri, in the field of plastic surgery, with a specialty in hand surgery; and Dr. Dickson in orthopedic surgery, and that each of them gave his opinion concerning the issues in this |
| case.4. . | case.4. PJI 1:91. |
| General Instruction—Interested Witness—Generally (Transcript page 640—The court specifies who the interested witnesses are before delivering the instruction:)You may also recall, jurors, that the infant-plaintiff, Ryan Clark and defendant Interlaken's representative, Camillo Della and defendant Malco's president, Anthony De Micco, all testified before you; and, as parties to the action or representatives of the parties, they are interested witnesses.(Rather than “such part as you find unworthy of acceptance,” the court says:)such part as you find unworthy of | General Instruction—Interested Witness—Generally (Transcript page 640—The court specifies who the interested witnesses are before delivering the instruction:)You may also recall, jurors, that the infant-plaintiff, Ryan Clark and defendant Interlaken's representative, Camillo Della and defendant Malco's president, Anthony De Micco, all testified before you; and, as parties to the action or representatives of the parties, they are interested witnesses.(Rather than “such part as you find unworthy of acceptance,” the court says:)such part as you find unworthy of |
| belief.5. . | belief.5. PJI 1:22. |
| Falsus in | Falsus in |
| Uno6. . | Uno6. PJI 1:25. |
| Consider Only Testimony and Exhibits (Transcript page 642—The court delivers first sentence of pattern instruction. In the second sentence, the court omits: “is entitled to equal consideration by you notwithstanding the fact that it was taken before the trial.” Instead, the court says:)[T]he answers and the questions are transcribed and then presented to the witness to review. If the witness wants to make changes or corrections, the witness may do so and sign it under oath and return it. And you are to treat that testimony just as if it came from here, on the stand in the courtroom.(The court delivers final sentence of pattern | Consider Only Testimony and Exhibits (Transcript page 642—The court delivers first sentence of pattern instruction. In the second sentence, the court omits: “is entitled to equal consideration by you notwithstanding the fact that it was taken before the trial.” Instead, the court says:)[T]he answers and the questions are transcribed and then presented to the witness to review. If the witness wants to make changes or corrections, the witness may do so and sign it under oath and return it. And you are to treat that testimony just as if it came from here, on the stand in the courtroom.(The court delivers final sentence of pattern |
| instruction.)7. . | instruction.)7. PJI 1:97. |
| General Instruction—Special Verdicts / | General Instruction—Special Verdicts / |
| . | PJI 1:26. |
| Five-Sixths Verdict (Transcript page 642—The court combines these two instructions. After the first sentence of | Five-Sixths Verdict (Transcript page 642—The court combines these two instructions. After the first sentence of |
| , | PJI 1:97, the |
| court adds:)Now, please read the entire verdict sheet carefully before you begin answering any questions.(After “while it is important that the views of all jurors be considered,” the court adds, from | court adds:)Now, please read the entire verdict sheet carefully before you begin answering any questions.(After “while it is important that the views of all jurors be considered,” the court adds, from |
| :)a | PJI 1:26:)a |
| verdict of five of the six members of this jury will be sufficient.(In second paragraph of | verdict of five of the six members of this jury will be sufficient.(In second paragraph of |
| , | PJI 1:97, the |
| court inserts phrase from | court inserts phrase from |
| :). . .five | PJI 1:26:). . .five |
| of you have agreed on a | of you have agreed on a |
| verdict. . .8. . | verdict. . .8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . | Sympathy9. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different Issues (Transcript page 643—The court prefaces the instruction with:)Jurors, the parties in this case bear certain burdens. . .(Transcript page 644—After “he or she” in the sentence that begins, “ In order for a party to prevail on an issue on which he or she has the burden of proof,” the court inserts:). . .the defendants, of course, are corporations but under the law, they are to be treated as persons. . ..(Transcript pages 644 to 645: After delivering instruction, the court explains the position of Ryan Clark, a minor, in the case, and specifies who bears the burdens:)Now, jurors, in this case, the plaintiff, John Clark, claims that the defendants caused the accident involving his son Ryan Clark, who I will also refer to as the infant-plaintiff. Now, by law, jurors, a child such as Ryan may only bring a lawsuit through an adult guardian; so, while his father, John Clark, is the nominal plaintiff in this action, Ryan is the real party in interest and it is his conduct, not his parents', that you must judge and consider in connection with this accident.Now, the defendants claim; that is, each defendant claims, that it did not cause the accident but that Ryan did. And each defendant says that even if it did have a part in causing the accident, Ryan also caused the accident.Now, the infant-plaintiff, Ryan, has the burden of proving that each defendant was negligent and that each defendant's negligence was a substantial factor in causing the accident. Each defendant has the burden of proving that Ryan was negligent and that his negligence was a substantial factor in causing this | General Instruction—Burden of Proof—When Burden Differs on Different Issues (Transcript page 643—The court prefaces the instruction with:)Jurors, the parties in this case bear certain burdens. . .(Transcript page 644—After “he or she” in the sentence that begins, “ In order for a party to prevail on an issue on which he or she has the burden of proof,” the court inserts:). . .the defendants, of course, are corporations but under the law, they are to be treated as persons. . ..(Transcript pages 644 to 645: After delivering instruction, the court explains the position of Ryan Clark, a minor, in the case, and specifies who bears the burdens:)Now, jurors, in this case, the plaintiff, John Clark, claims that the defendants caused the accident involving his son Ryan Clark, who I will also refer to as the infant-plaintiff. Now, by law, jurors, a child such as Ryan may only bring a lawsuit through an adult guardian; so, while his father, John Clark, is the nominal plaintiff in this action, Ryan is the real party in interest and it is his conduct, not his parents', that you must judge and consider in connection with this accident.Now, the defendants claim; that is, each defendant claims, that it did not cause the accident but that Ryan did. And each defendant says that even if it did have a part in causing the accident, Ryan also caused the accident.Now, the infant-plaintiff, Ryan, has the burden of proving that each defendant was negligent and that each defendant's negligence was a substantial factor in causing the accident. Each defendant has the burden of proving that Ryan was negligent and that his negligence was a substantial factor in causing this |
| accident.10. . | accident.10. PJI 2:10. |
| Common Law Standard of Care—Negligence Defined—Generally (Transcript page 646—At end of the instruction, the court adds:)So, negligence may involve commission, doing an act or omission, failing to do | Common Law Standard of Care—Negligence Defined—Generally (Transcript page 646—At end of the instruction, the court adds:)So, negligence may involve commission, doing an act or omission, failing to do |
| something.11. . | something.11. PJI 2:70. |
| Proximate Cause—In General (Transcript page 646—The court omits “There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it.” Instead, the court says:)Now, jurors, whether the negligence of a particular party or person was a substantial factor in causing the injury does not necessarily depend on the percentage of fault that may be apportioned to that party or | Proximate Cause—In General (Transcript page 646—The court omits “There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it.” Instead, the court says:)Now, jurors, whether the negligence of a particular party or person was a substantial factor in causing the injury does not necessarily depend on the percentage of fault that may be apportioned to that party or |
| person.12. . | person.12. PJI 2:55. |
| Implied Assumption of Risk (Transcript pages 646 to 647—The court tailors the pattern instruction to this case:)Now, the defendants, each of them, claim that the infant-plaintiff, Ryan, knew and fully understood that he might be injured if he played on the construction equipment, and therefore, he, Ryan, assumed the risk of the injury. It is each defendant's burden, as I mentioned, to prove that the infant-plaintiff assumed the risk of injury.Now, if you find that the infant-plaintiff, Ryan, knew and fully understood, or should have known and fully understood, the risk of injury, then you will find that he assumed the risk of injury and you must consider to what degree that assumption of risk contributed to the injury. If you find that Ryan did assume the risk, you will state on the verdict form that I mentioned to you (indicating) the respective degrees of fault of the infant-plaintiff, Ryan, and each defendant that you find at fault.(Note: The jury's verdict was reversed on appeal because the doctrine of assumption of risk was not applicable in a negligence action brought by the five-year-old tenant against the owners of an apartment complex; thus, this was an improper charge to the | Implied Assumption of Risk (Transcript pages 646 to 647—The court tailors the pattern instruction to this case:)Now, the defendants, each of them, claim that the infant-plaintiff, Ryan, knew and fully understood that he might be injured if he played on the construction equipment, and therefore, he, Ryan, assumed the risk of the injury. It is each defendant's burden, as I mentioned, to prove that the infant-plaintiff assumed the risk of injury.Now, if you find that the infant-plaintiff, Ryan, knew and fully understood, or should have known and fully understood, the risk of injury, then you will find that he assumed the risk of injury and you must consider to what degree that assumption of risk contributed to the injury. If you find that Ryan did assume the risk, you will state on the verdict form that I mentioned to you (indicating) the respective degrees of fault of the infant-plaintiff, Ryan, and each defendant that you find at fault.(Note: The jury's verdict was reversed on appeal because the doctrine of assumption of risk was not applicable in a negligence action brought by the five-year-old tenant against the owners of an apartment complex; thus, this was an improper charge to the |
| jury.)13. . | jury.)13. PJI 2:23. |
| Common Law Standard of Care—Care Required of Persons Under | Common Law Standard of Care—Care Required of Persons Under |
| Disability—Infant14. . | Disability—Infant14. PJI 2:90. |
| Possessor's Liability for Condition or Use of Premises—Standard of Care. [The reader is cautioned that PJI 2:90 has been substantially revised.] (Transcript page 648—After “you must first consider whether the premises were reasonably safe, the court adds:)The infant-plaintiff claims that the premises were not in a reasonably safe condition because the defendant Interlaken, the owner, failed to safeguard the construction site on its premises; and Malco, the contractor it hired, failed to secure or barricade its construction site and equipment—specifically, the trailer ramp—to prevent injury by children in the area. Now, the defendant Interlaken contends that it acted reasonably under the circumstances and entered into a contract with Malco Construction to perform the renovation and construction of the garage area. Defendant Malco contends that it took reasonable precautions and measures with respect to its construction site and equipment.(Transcript page 649—The court specifies that the standard of care applies to an “owner of property and a reasonably prudent contractor.” The court omits the following language from former | Possessor's Liability for Condition or Use of Premises—Standard of Care. [The reader is cautioned that PJI 2:90 has been substantially revised.] (Transcript page 648—After “you must first consider whether the premises were reasonably safe, the court adds:)The infant-plaintiff claims that the premises were not in a reasonably safe condition because the defendant Interlaken, the owner, failed to safeguard the construction site on its premises; and Malco, the contractor it hired, failed to secure or barricade its construction site and equipment—specifically, the trailer ramp—to prevent injury by children in the area. Now, the defendant Interlaken contends that it acted reasonably under the circumstances and entered into a contract with Malco Construction to perform the renovation and construction of the garage area. Defendant Malco contends that it took reasonable precautions and measures with respect to its construction site and equipment.(Transcript page 649—The court specifies that the standard of care applies to an “owner of property and a reasonably prudent contractor.” The court omits the following language from former |
| : | PJI 2:90: |
| “In other words, what precautions, if any, would a reasonable and prudent person take under the circumstances?” Reasonableness is said to hinge on “whether each defendant should have reasonably foreseen the presence of the infant-plaintiff or someone like him at the construction site.”)(The court omits: “ how often that part of the (land, building) was used and whether AB entered the premises for a purpose for which the premises were open to the public; AB entered the premises for a purpose that was related to CD's business; AB had CD's consent to (enter, remain on) the premises; AB was invited in as CD's guest; AB regularly used the premises or was there for a significant period of time.”)(Transcript pages 650 to 651—The court omits optional paragraph regarding trespassers, and optional paragraph regarding children. The court adds “or to give adequate warnings” after stating “take other suitable precautions.” The court omits optional paragraph about failure to warn, and paragraph about the condition being “open and obvious.” The court resumes instructions with:)Now, if you find that Ryan's presence was not foreseeable or that each defendant did not know of the condition and that, by the use of reasonable care, each defendant would not have been able to discover and correct it; or, if you find that each defendant knew of the unsafe condition but took suitable precautions or gave Ryan, or an infant-plaintiff, an adequate warning, you will find that each defendant was not negligent.(Transcript page 651—The court omits: “ On the other hand, if you find ([add where appropriate:] that AB's presence was foreseeable and) that AB knew of the condition or would have been able to discover it by the use of reasonable care but that CD failed to correct the condition or take suitable precautions, you will find that CD was negligent.” The court continues:)If you find that each defendant was negligent, you must next consider whether the negligence was a substantial factor in causing the infant-plaintiff's injury. Now, as I previously explained, an act or failure to act is a substantial factor in bringing about an injury if a reasonable person would regard it as a cause of the injury. Now, if you find that both defendants' negligence was not a substantial factor in causing the injury, plaintiff may not recover. If you find that either or both defendants' negligence was a substantial factor in causing Ryan's injury, you will proceed to consider comparative | “In other words, what precautions, if any, would a reasonable and prudent person take under the circumstances?” Reasonableness is said to hinge on “whether each defendant should have reasonably foreseen the presence of the infant-plaintiff or someone like him at the construction site.”)(The court omits: “ how often that part of the (land, building) was used and whether AB entered the premises for a purpose for which the premises were open to the public; AB entered the premises for a purpose that was related to CD's business; AB had CD's consent to (enter, remain on) the premises; AB was invited in as CD's guest; AB regularly used the premises or was there for a significant period of time.”)(Transcript pages 650 to 651—The court omits optional paragraph regarding trespassers, and optional paragraph regarding children. The court adds “or to give adequate warnings” after stating “take other suitable precautions.” The court omits optional paragraph about failure to warn, and paragraph about the condition being “open and obvious.” The court resumes instructions with:)Now, if you find that Ryan's presence was not foreseeable or that each defendant did not know of the condition and that, by the use of reasonable care, each defendant would not have been able to discover and correct it; or, if you find that each defendant knew of the unsafe condition but took suitable precautions or gave Ryan, or an infant-plaintiff, an adequate warning, you will find that each defendant was not negligent.(Transcript page 651—The court omits: “ On the other hand, if you find ([add where appropriate:] that AB's presence was foreseeable and) that AB knew of the condition or would have been able to discover it by the use of reasonable care but that CD failed to correct the condition or take suitable precautions, you will find that CD was negligent.” The court continues:)If you find that each defendant was negligent, you must next consider whether the negligence was a substantial factor in causing the infant-plaintiff's injury. Now, as I previously explained, an act or failure to act is a substantial factor in bringing about an injury if a reasonable person would regard it as a cause of the injury. Now, if you find that both defendants' negligence was not a substantial factor in causing the injury, plaintiff may not recover. If you find that either or both defendants' negligence was a substantial factor in causing Ryan's injury, you will proceed to consider comparative |
| fault.15. . | fault.15. PJI 2:36. |
| Comparative Fault (Transcript pages 651 to 652—In the second paragraph, the court weaves in “assumption of risk” language.)Now, if you find that Ryan was not negligent or did not assume a risk, or if you find that he was negligent but that his negligence or assumption of risk did not contribute to causing this accident, you should go on to consider damages. If, however, you find that Ryan was negligent or he assumed the risk, and that his negligence or assumption of risk contributed to causing this accident, you must then apportion the fault among Ryan and each defendant that you have found to be negligent.(Note: Jury's verdict was reversed on appeal because the doctrine of assumption of risk was not applicable in negligence action brought by five-year-old tenant against the owners of an apartment complex; thus, this was an improper charge to the jury.)(Transcript page 652: At the end of the instruction, the court provides examples for the jury:)Now, for example, jurors, if you should find that each defendant—Interlaken and Malco—and Ryan were equally negligent, you would report that each was thirty-three-and-one-third percent responsible. If you should find that one party was more negligent than the other in causing this accident, you would assign a higher percentage to that party or person and a lower percentage to the other or others, with the total of the percentages equaling 100 | Comparative Fault (Transcript pages 651 to 652—In the second paragraph, the court weaves in “assumption of risk” language.)Now, if you find that Ryan was not negligent or did not assume a risk, or if you find that he was negligent but that his negligence or assumption of risk did not contribute to causing this accident, you should go on to consider damages. If, however, you find that Ryan was negligent or he assumed the risk, and that his negligence or assumption of risk contributed to causing this accident, you must then apportion the fault among Ryan and each defendant that you have found to be negligent.(Note: Jury's verdict was reversed on appeal because the doctrine of assumption of risk was not applicable in negligence action brought by five-year-old tenant against the owners of an apartment complex; thus, this was an improper charge to the jury.)(Transcript page 652: At the end of the instruction, the court provides examples for the jury:)Now, for example, jurors, if you should find that each defendant—Interlaken and Malco—and Ryan were equally negligent, you would report that each was thirty-three-and-one-third percent responsible. If you should find that one party was more negligent than the other in causing this accident, you would assign a higher percentage to that party or person and a lower percentage to the other or others, with the total of the percentages equaling 100 |
| percent.16. . Damages—General17. . | percent.16. PJI 2:277. Damages—General17. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering18. | Suffering18. PJI 2:280.1 |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (enjoyment of life) (Transcript page 654—The court omits: “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that (he, she) has suffered.” The court adds:)If you find that the infant-plaintiff, Ryan, as a result of his injuries, suffered some loss of the ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to Ryan for pain and suffering to | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (enjoyment of life) (Transcript page 654—The court omits: “However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that (he, she) has suffered.” The court adds:)If you find that the infant-plaintiff, Ryan, as a result of his injuries, suffered some loss of the ability to enjoy life, you may take that loss into consideration in determining the amount to be awarded to Ryan for pain and suffering to |
| date.19. . | date.19. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (income | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (income |
| taxes)20. . | taxes)20. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages 654 to 655—Much of this instruction is illegible in the available copy of the transcript. However, at Transcript page 684, the instruction is repeated for the jury the next day. The court omits the possibility that the injuries are not permanent, and does not say that the jury should “take into consideration the period of time that the injuries or disabilities are expected to continue.” Instead, the court merely states:)In this regard, you take into consideration the period of time that Ryan can be expected to | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (Transcript pages 654 to 655—Much of this instruction is illegible in the available copy of the transcript. However, at Transcript page 684, the instruction is repeated for the jury the next day. The court omits the possibility that the injuries are not permanent, and does not say that the jury should “take into consideration the period of time that the injuries or disabilities are expected to continue.” Instead, the court merely states:)In this regard, you take into consideration the period of time that Ryan can be expected to |
| live.21. . | live.21. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (Transcript page 655, where this instruction arises, is illegible in the available transcript. The court appears to follow the pattern instruction regarding future medical expenses, but omits mention of medical expenses already | Damages—Personal Injury—Expenses Incurred (Transcript page 655, where this instruction arises, is illegible in the available transcript. The court appears to follow the pattern instruction regarding future medical expenses, but omits mention of medical expenses already |
| incurred.)22. . | incurred.)22. PJI 1:28. |
| Conclusion (Transcript page 666—The court notes:)[Y]ou are free to choose any one of the six of you as your foreperson. So your first order of business when you're in the jury room will be the selection of a foreperson.(After telling the jurors to “discuss the evidence and the issues in the case among yourselves,” the court notes:)Up to this point, I have directed you not to discuss this case; I am now urging you to discuss this | Conclusion (Transcript page 666—The court notes:)[Y]ou are free to choose any one of the six of you as your foreperson. So your first order of business when you're in the jury room will be the selection of a foreperson.(After telling the jurors to “discuss the evidence and the issues in the case among yourselves,” the court notes:)Up to this point, I have directed you not to discuss this case; I am now urging you to discuss this |
| case.23. . | case.23. PJI 1:24. |
| Return to Courtroom (Transcript pages 657 to 658—The court adds:)Now, I would request that any such request of yours be in writing and signed by your foreperson, and if you can, put the date and time. Now, jurors, please be as specific as possible in any such request. If you would like testimony reread, please, of course, identify the witness and, if you can pin down the testimony to the direct or the cross-examination or some other part of it, then please do so. If you cannot, then, of course, you'll have to ask for all the testimony. Now, bear in mind that the reporter will have to go through the stenographic notes to find the appropriate testimony, and therefore, I'm telling you in advance—I'm sort of telegraphing for you—that there will be a delay in any note that you may send. Even if you send a note asking about the law, jurors, I am required to discuss that with the attorneys before I answer your question. And so, any note that you send out will involve some delay. And so, I'm suggesting that if you are able to continue to deliberate while we are gathering the information that you [illegible] then please do so.24. Transcript page 659: No corresponding pattern instruction, regarding only discussing case when all six are present in jury room:Now, jurors, there can be no discussion of the case among those of you who left the jury room, for whatever reason, or those of you who remain in the jury room. You may only deliberate when all six of you are in the jury room. So there are two conditions: You must be in the jury room, and all six of you must be present, in order to deliberate.(The court discusses breaks needed by the jurors, sends jurors out of courtroom, then talks with counsel, who have no exceptions. The jury | Return to Courtroom (Transcript pages 657 to 658—The court adds:)Now, I would request that any such request of yours be in writing and signed by your foreperson, and if you can, put the date and time. Now, jurors, please be as specific as possible in any such request. If you would like testimony reread, please, of course, identify the witness and, if you can pin down the testimony to the direct or the cross-examination or some other part of it, then please do so. If you cannot, then, of course, you'll have to ask for all the testimony. Now, bear in mind that the reporter will have to go through the stenographic notes to find the appropriate testimony, and therefore, I'm telling you in advance—I'm sort of telegraphing for you—that there will be a delay in any note that you may send. Even if you send a note asking about the law, jurors, I am required to discuss that with the attorneys before I answer your question. And so, any note that you send out will involve some delay. And so, I'm suggesting that if you are able to continue to deliberate while we are gathering the information that you [illegible] then please do so.24. Transcript page 659: No corresponding pattern instruction, regarding only discussing case when all six are present in jury room:Now, jurors, there can be no discussion of the case among those of you who left the jury room, for whatever reason, or those of you who remain in the jury room. You may only deliberate when all six of you are in the jury room. So there are two conditions: You must be in the jury room, and all six of you must be present, in order to deliberate.(The court discusses breaks needed by the jurors, sends jurors out of courtroom, then talks with counsel, who have no exceptions. The jury |
| returns.)25. . | returns.)25. PJI 1:29. |
| Alternate Jurors(Transcript page 667—Next day, jurors send out a note that the Court interprets as meaning that the jury wants “whole second half of the charge” read to them, as well as some of the testimony. Starting at Transcript page 673, the court re-reads charges, starting with Instruction no. 11, regarding burdens of proof.)C. Case Documents Available on Westlaw1.On appeal: Clark v. Interlaken Owners, Inc., 2 A.D.3d 338, 770 N.Y.S.2d 58 (1st Dep't 2003) | Alternate Jurors(Transcript page 667—Next day, jurors send out a note that the Court interprets as meaning that the jury wants “whole second half of the charge” read to them, as well as some of the testimony. Starting at Transcript page 673, the court re-reads charges, starting with Instruction no. 11, regarding burdens of proof.)C. Case Documents Available on Westlaw1.On appeal: Clark v. Interlaken Owners, Inc., 2 A.D.3d 338, 770 N.Y.S.2d 58 (1st Dep't 2003) |
| ( | (reversing |
| and remanding case)Clark v. Interlaken Owners, Inc., 291 A.D.2d 938, 739 N.Y.S.2d 561 (1st Dep't 2002) (appeal deemed withdrawn)Verdict and Settlement Summary, 2000 WL 1204431Jury Instruction, 2000 WL 34611600Verdict, Agreement and Settlement, | and remanding case)Clark v. Interlaken Owners, Inc., 291 A.D.2d 938, 739 N.Y.S.2d 561 (1st Dep't 2002) (appeal deemed withdrawn)Verdict and Settlement Summary, 2000 WL 1204431Jury Instruction, 2000 WL 34611600Verdict, Agreement and Settlement, |
| 2.Sample | 2000 WL 346115972.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:6 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:6 Premises |
| liability/Slip and fall/roadway construction; alleged improper maintenance of roadwayA. BackgroundType of Case: Slip and fall; roadway under constructionType of Injury/Damages: Torn ligaments, other physical and emotional injuriesCase Name: MUNOZ, Sandra, v. THE CITY OF NEW YORK, Consolidated Edison Company of New York, Inc. and the Hallen Construction, Co., Inc.Court: New York State Supreme Court, Bronx CountyJudge: Hon. Mary Ann BriganttiDocket Number: 309776/2011.Outcome: Verdict for plaintiff against defendant Consolidated Edison Company of New York, Inc., in the amount of $150,000, consisting of $100,000 for past pain and suffering, and $50,000 for future pain and suffering (20 years). Percentage of fault assigned to said defendant was 75 percent, with plaintiff assigned 25 percent of fault. The court granted a directed verdict in favor of defendant Hallen Construction Co., Inc.Date of verdict: June 9, 2015Brief Summary of Factual Allegations: This is an action to recover damages for personal injuries at 8:15 a.m. when she tripped and fell in a pothole located in the roadway on East 172nd Street between Fteley Avenue and Metcalf Avenue, Bronx, NY, tearing ligaments in her right ankle. The location was within a work area of defendant Consolidated Edison, which had hired co-defendant Hallen Construction to dig “test pits” and install natural gas pipes on East 172nd Street between Fteley and Metcalf, a project that had been previously completed.B. Requests to Charge1. Con Edison's Request to | liability/Slip and fall/roadway construction; alleged improper maintenance of roadwayA. BackgroundType of Case: Slip and fall; roadway under constructionType of Injury/Damages: Torn ligaments, other physical and emotional injuriesCase Name: MUNOZ, Sandra, v. THE CITY OF NEW YORK, Consolidated Edison Company of New York, Inc. and the Hallen Construction, Co., Inc.Court: New York State Supreme Court, Bronx CountyJudge: Hon. Mary Ann BriganttiDocket Number: 309776/2011.Outcome: Verdict for plaintiff against defendant Consolidated Edison Company of New York, Inc., in the amount of $150,000, consisting of $100,000 for past pain and suffering, and $50,000 for future pain and suffering (20 years). Percentage of fault assigned to said defendant was 75 percent, with plaintiff assigned 25 percent of fault. The court granted a directed verdict in favor of defendant Hallen Construction Co., Inc.Date of verdict: June 9, 2015Brief Summary of Factual Allegations: This is an action to recover damages for personal injuries at 8:15 a.m. when she tripped and fell in a pothole located in the roadway on East 172nd Street between Fteley Avenue and Metcalf Avenue, Bronx, NY, tearing ligaments in her right ankle. The location was within a work area of defendant Consolidated Edison, which had hired co-defendant Hallen Construction to dig “test pits” and install natural gas pipes on East 172nd Street between Fteley and Metcalf, a project that had been previously completed.B. Requests to Charge1. Con Edison's Request to |
| Charge1. . | Charge1. PJI 1:7. |
| Consider Only Competent | Consider Only Competent |
| Evidence2. . | Evidence2. PJI 1:8. |
| Weighing | Weighing |
| Testimony3. . | Testimony3. PJI 1:22. |
| Falsus In | Falsus In |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to the | Return to the |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixth | Five-Sixth |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . | Sympathy9. PJI 1:41. |
| Weighing | Weighing |
| Testimony10. . | Testimony10. PJI 1:55. |
| Admission against Interest — By | Admission against Interest — By |
| Statement11. . | Statement11. PJI 1:60. |
| Burden of | Burden of |
| Proof12. . | Proof12. PJI 1:90. |
| Expert | Expert |
| Witnesses13. . | Witnesses13. PJI 1:91. |
| Interested | Interested |
| Witnesses14. . | Witnesses14. PJI 1:92. |
| Interested Witness-Employee of a Party (Margaret White, | Interested Witness-Employee of a Party (Margaret White, |
| Manuel17. . Foreseeability18. . | Manuel17. PJI 2:12. Foreseeability18. PJI 2:36. |
| Comparative | Comparative |
| Fault19. . | Fault19. PJI 2:70. |
| Proximate | Proximate |
| Cause20. . | Cause20. PJI 2:77. |
| [This No-Fault charge is modified so as to charge the sidewalk pedestrian with duty to see what was to be seen.]Proposed Language: “It is the duty of a pedestrian to walk with reasonable care, taking into account the actual and potential dangers and the circumstances then existing, to see and be aware of what was in her view, and to use reasonable care to avoid an accident.”Based upon: Thoma v. Ronai, 189 AD2d 635 (AD-I, 1993), | [This No-Fault charge is modified so as to charge the sidewalk pedestrian with duty to see what was to be seen.]Proposed Language: “It is the duty of a pedestrian to walk with reasonable care, taking into account the actual and potential dangers and the circumstances then existing, to see and be aware of what was in her view, and to use reasonable care to avoid an accident.”Based upon: Thoma v. Ronai, 189 AD2d 635 (AD-I, 1993), |
| aff'd |
| 82 NY2d 736, 1993); Brooks v. Sunben Realty. Inc., et al, filed | 82 NY2d 736, 1993); Brooks v. Sunben Realty. Inc., et al, filed |
| ; | Order, aff'd 36 AD3d 171; |
| and | and |
| .21. . Damages22. . | Mauro v. Rosedale Enterprises, et al, 60 AD3d 401.21. PJI 2:277. Damages22. PJI 2:280. |
| Damages — Personal Injury- Injury and Pain and | Damages — Personal Injury- Injury and Pain and |
| Suffering23. . | Suffering23. PJI 2:281. |
| Permanence — Damages — Personal Injury — Life Expectancy Table along with a “Supplement to | Permanence — Damages — Personal Injury — Life Expectancy Table along with a “Supplement to |
| PJI 2:281 |
| Regarding Life Expectancy Tables.”2. City of New York's Proposed Request to Charge1.1:20 Introduction2.1:21 Review Principles Stated3.1:22 Falsus In Uno4.1:60 Burden Of Proof5.1:24 Return To Courtroom6.1:25 Consider Only Testimony And Exhibits7.1.25A Juror's Use Of Professional Expertise8.1:26 Five-Sixths Verdict9.1:27 Exclude Sympathy10.1:28 Conclusion11.1:29 Alternate Jurors12.1:36 Impartiality13.1:37 Jury Function14.1:38 Court Function15.1:39 No Inference From Rulings16.1:40 Consider Only Competent Evidence17.1:41 Weighing Testimony18.1:90 Expert Witness19.1:91 Interested Witnesses- Plaintiff20.1:92 EMPLOYEES- Margaret White (City Witness)21.1:94 General Instructions-Use Of Pre-Trial Deposition Upon Trial22.1:97 General Instructions — Special Verdicts23.2:10 Common Law Standard Of Care — Negligence Defined24.2:12 Common Law Standard Of Care — Foreseeability25.2:36 Comparative Negligence [modified]Plaintiff is required to use reasonable care in avoiding all conditions that are open, obvious and readily apparent. Garcia v. NYCHA, 234 A.D.2d 102 (2nd Dept. 1996); Serrano v. New York City Hous. Auth., 268 A.D.2d 230 (1st Dept. | Regarding Life Expectancy Tables.”2. City of New York's Proposed Request to Charge1.1:20 Introduction2.1:21 Review Principles Stated3.1:22 Falsus In Uno4.1:60 Burden Of Proof5.1:24 Return To Courtroom6.1:25 Consider Only Testimony And Exhibits7.1.25A Juror's Use Of Professional Expertise8.1:26 Five-Sixths Verdict9.1:27 Exclude Sympathy10.1:28 Conclusion11.1:29 Alternate Jurors12.1:36 Impartiality13.1:37 Jury Function14.1:38 Court Function15.1:39 No Inference From Rulings16.1:40 Consider Only Competent Evidence17.1:41 Weighing Testimony18.1:90 Expert Witness19.1:91 Interested Witnesses- Plaintiff20.1:92 EMPLOYEES- Margaret White (City Witness)21.1:94 General Instructions-Use Of Pre-Trial Deposition Upon Trial22.1:97 General Instructions — Special Verdicts23.2:10 Common Law Standard Of Care — Negligence Defined24.2:12 Common Law Standard Of Care — Foreseeability25.2:36 Comparative Negligence [modified]Plaintiff is required to use reasonable care in avoiding all conditions that are open, obvious and readily apparent. Garcia v. NYCHA, 234 A.D.2d 102 (2nd Dept. 1996); Serrano v. New York City Hous. Auth., 268 A.D.2d 230 (1st Dept. |
| 2000)26.. | 2000)26.PJI 2:70. |
| Proximate | Proximate |
| Cause26.1. | Cause26.1.PJI 2:71 |
| Proximate Causes Concurrent | Proximate Causes Concurrent |
| Causes27.. | Causes27.PJI 2:225A. |
| (P. 580, 2015 Edition Of PJI) Municipal Liability—Public Premises And Ways-Prior Written Notice | (P. 580, 2015 Edition Of PJI) Municipal Liability—Public Premises And Ways-Prior Written Notice |
| Required28.. Damages-General29.. | Required28.PJI 2:277. Damages-General29.PJI 2:277A. |
| Damages-Comment By Counsel During Closing | Damages-Comment By Counsel During Closing |
| Remarks30.. | Remarks30.PJI 2:280. |
| Damages-Personal Injury-Injury Pain & | Damages-Personal Injury-Injury Pain & |
| Suffering31.. | Suffering31.PJI 2:280.2. |
| Damages—Income TaxesC. Case Documents available on | Damages—Income TaxesC. Case Documents available on |
| Westlaw | Westlaw2012 WL 12334620 (N.Y.Sup.) |
| (Trial Pleading), Amended Verified | (Trial Pleading), Amended Verified |
| Complaint | Complaint2013 WL 11020864 (N.Y.Sup.) |
| (Trial Pleading), Verified Answer to Amended Complaint and | (Trial Pleading), Verified Answer to Amended Complaint and |
| Cross-Complaints | Cross-Complaints2015 WL 5883538 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), City of New York Motion in | (Trial Motion, Memorandum and Affidavit), City of New York Motion in |
| Limine | Limine2015 WL 5883576 (N.Y.Sup.) |
| (Trial Motion, Memorandum and Affidavit), City of New York Memo of | (Trial Motion, Memorandum and Affidavit), City of New York Memo of |
| Law | Law2015 WL 5883524 (N.Y.Sup.) |
| (Jury Instruction), City of New York Proposed Requests to | (Jury Instruction), City of New York Proposed Requests to |
| Charge | Charge2015 WL 5883541 (N.Y.Sup.) |
| (Jury Instruction), Con Edison's Requests to | (Jury Instruction), Con Edison's Requests to |
| Charge | Charge2015 WL 5883604 (N.Y.Sup.) |
| (Verdict, Agreement and Settlement), Verdict | (Verdict, Agreement and Settlement), Verdict |
| Sheet | Sheet2015 WL 6163985 (N.Y.Sup.) |
| (Trial Order), Clerk's certificate of verdictsSample Westlaw Query for Trial Court documents in Similar Cases: adv: pothole /p constructionD. Research References1.Key | (Trial Order), Clerk's certificate of verdictsSample Westlaw Query for Trial Court documents in Similar Cases: adv: pothole /p constructionD. Research References1.Key |
| Numbers , , , , 2.Westlaw | NumbersNegligence 1086, 1087, 1095Municipal Corporations 755, 762(1), 7672.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 6:7 Premises liability/Loose step; muscle ruptures/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Bilateral quadriceps rupturesCase Name: Emeterio Rivera, Plaintiff, v. Kathy Americo and Salvatore Americo, DefendantsCourt: Supreme Court of New York, Kings CountyJudge: Bert A. BunyanDocket Number: 26204/00Verdict Date: October 10, 2002Outcome: Verdict for Defendant; reversed on appeal, new trial ordered. On appeal, the verdict was reversed and a new trial granted on basis of the Court's failure to advise the jury that the owners' violation of the State Uniform Fire Prevention and Building Code in failing to provide a handrail may be found to be the proximate cause of resident's accident.Brief Summary of Facts: Plaintiff fell down a short flight of stairs outside his girlfriend's rented first-floor apartment. Plaintiff was living in the apartment at the time of the accident. Plaintiff sued Defendants, who owned the building. He claimed that the second step of the stairs collapsed under his weight, and that the stairs were defective because they had wood rot. He noted that the stairs, which consisted of four risers, provided the only means of entrance to the apartment. He added that the lack of a handrail was a violation of local ordinances.Plaintiff's expert engineer testified that the wood rot was a longstanding problem that should have been discovered by Defendants. Plaintiff's girlfriend added that the broken step, which was approximately three feet long and four feet deep, fell off as a result of the accident, and that the step was lying in the driveway when she exited the apartment to assist Plaintiff. Defendants argued that Plaintiff's fall was occasioned by coetaneous ruptures of his quadriceps muscles, as evidenced by statements made by the EMT personnel that treated Plaintiff following the incident. Both responding EMTs conceded that they did not take notice of the specific condition of the stairs following the accident. However, they testified that there was not a large plank of wood lying on the sidewalk, and that there was not a large piece of missing step. They added that Plaintiff was sitting on the step that was alleged to have been broken.Defendants also argued that the absence of a handrail was irrelevant, since Plaintiff had testified that he simply fell forward when the step broke. The court agreed and removed this issue from the jury's consideration.On appeal, the verdict was reversed and a new trial granted on basis of the Court's failure to advise the jury that the owners' violation of the State Uniform Fire Prevention and Building Code in failing to provide a handrail may be found to be the proximate cause of resident's accident. The appeals court stated: “In the present case, a reasonable view of the evidence could support the finding that Defendants' failure to provide a handrail on the stairway was a proximate cause of Plaintiff's accident.”B. Jury Instructions1. Instructions Proposed by | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts§ 6:7 Premises liability/Loose step; muscle ruptures/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Bilateral quadriceps rupturesCase Name: Emeterio Rivera, Plaintiff, v. Kathy Americo and Salvatore Americo, DefendantsCourt: Supreme Court of New York, Kings CountyJudge: Bert A. BunyanDocket Number: 26204/00Verdict Date: October 10, 2002Outcome: Verdict for Defendant; reversed on appeal, new trial ordered. On appeal, the verdict was reversed and a new trial granted on basis of the Court's failure to advise the jury that the owners' violation of the State Uniform Fire Prevention and Building Code in failing to provide a handrail may be found to be the proximate cause of resident's accident.Brief Summary of Facts: Plaintiff fell down a short flight of stairs outside his girlfriend's rented first-floor apartment. Plaintiff was living in the apartment at the time of the accident. Plaintiff sued Defendants, who owned the building. He claimed that the second step of the stairs collapsed under his weight, and that the stairs were defective because they had wood rot. He noted that the stairs, which consisted of four risers, provided the only means of entrance to the apartment. He added that the lack of a handrail was a violation of local ordinances.Plaintiff's expert engineer testified that the wood rot was a longstanding problem that should have been discovered by Defendants. Plaintiff's girlfriend added that the broken step, which was approximately three feet long and four feet deep, fell off as a result of the accident, and that the step was lying in the driveway when she exited the apartment to assist Plaintiff. Defendants argued that Plaintiff's fall was occasioned by coetaneous ruptures of his quadriceps muscles, as evidenced by statements made by the EMT personnel that treated Plaintiff following the incident. Both responding EMTs conceded that they did not take notice of the specific condition of the stairs following the accident. However, they testified that there was not a large plank of wood lying on the sidewalk, and that there was not a large piece of missing step. They added that Plaintiff was sitting on the step that was alleged to have been broken.Defendants also argued that the absence of a handrail was irrelevant, since Plaintiff had testified that he simply fell forward when the step broke. The court agreed and removed this issue from the jury's consideration.On appeal, the verdict was reversed and a new trial granted on basis of the Court's failure to advise the jury that the owners' violation of the State Uniform Fire Prevention and Building Code in failing to provide a handrail may be found to be the proximate cause of resident's accident. The appeals court stated: “In the present case, a reasonable view of the evidence could support the finding that Defendants' failure to provide a handrail on the stairway was a proximate cause of Plaintiff's accident.”B. Jury Instructions1. Instructions Proposed by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:22. |
| Falsus In | Falsus In |
| Uno3. . | Uno3. PJI 1:23. |
| Burden of | Burden of |
| Proof4. . | Proof4. PJI 1:24. |
| Return to | Return to |
| Courtroom5. . | Courtroom5. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. . | Exhibits6. PJI 1:25A. |
| Juror's Use of Professional | Juror's Use of Professional |
| Expertise7. . | Expertise7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:26B. |
| Special Verdict (Note: | Special Verdict (Note: |
| , | PJI 1:26B, |
| as requested by the defendant, does not appear in the current edition of NY PJI; | as requested by the defendant, does not appear in the current edition of NY PJI; |
| PJI 1:26 |
| B Special Verdict, last appeared in the 1998 edition and was identical to | B Special Verdict, last appeared in the 1998 edition and was identical to |
| ; | PJI 1:97; |
| note that in the defendant's proposed instruction 21, | note that in the defendant's proposed instruction 21, |
| , | PJI 1:97, |
| Special Verdict, is also | Special Verdict, is also |
| requested.)9. . | requested.)9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy10. . Conclusion11. . | Sympathy10. PJI 1:28. Conclusion11. PJI 1:29. |
| Alternate | Alternate |
| Jurors12. . Impartiality13. . | Jurors12. PJI 1:36. Impartiality13. PJI 1:37. |
| Jury | Jury |
| Function14. . | Function14. PJI 1:38. |
| Court's | Court's |
| Function15. . | Function15. PJI 1:39. |
| No Inference from | No Inference from |
| Rulings16. . | Rulings16. PJI 1:40. |
| Consider only the Competent | Consider only the Competent |
| Evidence17. . | Evidence17. PJI 1:41. |
| Weighing | Weighing |
| Testimony18. . | Testimony18. PJI 1:90. |
| Expert | Expert |
| Witness19. . | Witness19. PJI 1:91. |
| Interested | Interested |
| Witnesses20. . | Witnesses20. PJI 1:94. |
| Use of Pre-Trial Deposition Upon | Use of Pre-Trial Deposition Upon |
| Trial21. . | Trial21. PJI 1:97. |
| Special | Special |
| Verdicts22. . | Verdicts22. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined23. . Foreseeability24. . | Defined23. PJI 2:12. Foreseeability24. PJI 2:36. |
| Comparative | Comparative |
| Negligence25. . | Negligence25. PJI 2:70. |
| Proximate | Proximate |
| Cause26. . | Cause26. PJI 2:90. |
| Possessor's Liability for Condition or Use of Premises—Standard of | Possessor's Liability for Condition or Use of Premises—Standard of |
| Care27. . | Care27. PJI 1:85. |
| Theory of the case instruction (Defendant requests:)It is the plaintiff's position that he was caused to fall by reason of the second step breaking under his feet, if you do not find that the breaking of the step was the cause of the plaintiff's accident, you must find for the defendant.2. Instructions Proposed by | Theory of the case instruction (Defendant requests:)It is the plaintiff's position that he was caused to fall by reason of the second step breaking under his feet, if you do not find that the breaking of the step was the cause of the plaintiff's accident, you must find for the defendant.2. Instructions Proposed by |
| Plaintiff1. . Introduction2. . Impartially3. . | Plaintiff1. PJI 1:35. Introduction2. PJI 1:36. Impartially3. PJI 1:37. |
| Jury | Jury |
| Function4. . | Function4. PJI 1:38. |
| Court's | Court's |
| Function5. . | Function5. PJI 1:39. |
| No Inference from | No Inference from |
| Rulings6. . | Rulings6. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence7. . | Evidence7. PJI 1:41. |
| Weighing | Weighing |
| Testimony8. . | Testimony8. PJI 1:22. |
| False | False |
| Testimony9. . | Testimony9. PJI 1:23. |
| Burden of | Burden of |
| Proof10. . | Proof10. PJI 1:24. |
| Reading of Testimony or | Reading of Testimony or |
| Instructions11. . | Instructions11. PJI 1:25. |
| Consider only Testimony and | Consider only Testimony and |
| Exhibits12. . | Exhibits12. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict13. . | Verdict13. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| defined14. . | defined14. PJI 2:70. |
| Proximate Cases15. Xxxxxxx (Note: This entry is as it was presented by the Plaintiff in his Requests to | Proximate Cases15. Xxxxxxx (Note: This entry is as it was presented by the Plaintiff in his Requests to |
| Charge.)16. . | Charge.)16. PJI 1:91. |
| Interested | Interested |
| Witnesses—Generally17. . | Witnesses—Generally17. PJI 2:12. |
| Common Law Standard of | Common Law Standard of |
| Care—Foreseeability—Generally18. . | Care—Foreseeability—Generally18. PJI 1:55. |
| General Instruction—Admission Against Interest—By | General Instruction—Admission Against Interest—By |
| Statement19. | Statement19. PJI 1:75 |
| General Instruction—Evidence—Failure to Produce Witness—In | General Instruction—Evidence—Failure to Produce Witness—In |
| General20. . | General20. PJI 2:29. |
| Statutory Standard of Care—Ordinances or | Statutory Standard of Care—Ordinances or |
| Regulations.21. . | Regulations.21. PJI 2:90. |
| Owner's Liability for Condition or Use of Premises—Standard of Care [former] (Plaintiff adds:)Plaintiff contends the deck was built illegally and the premises were unsafe because the steps were not maintained. They were dilapidated, worn and broken. There was also no railing along side the steps to allow a person to hold | Owner's Liability for Condition or Use of Premises—Standard of Care [former] (Plaintiff adds:)Plaintiff contends the deck was built illegally and the premises were unsafe because the steps were not maintained. They were dilapidated, worn and broken. There was also no railing along side the steps to allow a person to hold |
| on22. . | on22. PJI 2:91. |
| Liability for Condition/Use of Land—Possessor's Liability—Unsafe Condition (In paragraph 1, Plaintiff specifies that “Owner of property” has the duty to use reasonable care. Instead of paragraph 3, Plaintiff requests:)You must first consider whether the premises was in reasonably safe condition. Plaintiff contends the deck and steps were built illegally and the premises were unsafe because the steps were not maintained. They were dilapidated, worn and broken and cracked in half as plaintiff was walking down the steps. There was also no railing along side the steps to allow a person to hold on. Defendant contends that. . .(Plaintiff leaves blank space here.)You must decide whether the steps were not maintained and were dilapidated, worn and broken. You must also consider defendants' admission that there was also no railing along side the steps to allow a person to hold on.(Note that the omission of the previous sentence from the judge's charge caused the verdict for Defendant to be reversed.)You must decide whether a reasonably prudent person would have anticipated that the condition described, as it existed, was not reasonably safe for persons using the deck and | Liability for Condition/Use of Land—Possessor's Liability—Unsafe Condition (In paragraph 1, Plaintiff specifies that “Owner of property” has the duty to use reasonable care. Instead of paragraph 3, Plaintiff requests:)You must first consider whether the premises was in reasonably safe condition. Plaintiff contends the deck and steps were built illegally and the premises were unsafe because the steps were not maintained. They were dilapidated, worn and broken and cracked in half as plaintiff was walking down the steps. There was also no railing along side the steps to allow a person to hold on. Defendant contends that. . .(Plaintiff leaves blank space here.)You must decide whether the steps were not maintained and were dilapidated, worn and broken. You must also consider defendants' admission that there was also no railing along side the steps to allow a person to hold on.(Note that the omission of the previous sentence from the judge's charge caused the verdict for Defendant to be reversed.)You must decide whether a reasonably prudent person would have anticipated that the condition described, as it existed, was not reasonably safe for persons using the deck and |
| steps23. . | steps23. PJI 2:71. |
| Proximate Cause—Concurrent Causes (Although Plaintiff does not specify a PJI number, the following language, requested by the Plaintiff, is most similar to | Proximate Cause—Concurrent Causes (Although Plaintiff does not specify a PJI number, the following language, requested by the Plaintiff, is most similar to |
| :)Legal | PJI 2:71:)Legal |
| Causation for Injuries: An act or omission is a cause of an injury if reasonable people would agree that it was a substantial factor in bringing about that injury. The law does not say that an injury must be caused by only one thing, or the conduct of only one person. On the contrary, many things, or the conduct of more than one person, may operate either independently or together to cause injury, and if that happens, each may be a cause of the | Causation for Injuries: An act or omission is a cause of an injury if reasonable people would agree that it was a substantial factor in bringing about that injury. The law does not say that an injury must be caused by only one thing, or the conduct of only one person. On the contrary, many things, or the conduct of more than one person, may operate either independently or together to cause injury, and if that happens, each may be a cause of the |
| injury24. . | injury24. PJI 2:277. |
| Damages—General (Plaintiff asks for the following additional language:)The purpose of an award of damages is to restore the aggrieved party to the position which he held prior to injury. This is accomplished by awarding a sum of money which compensates him for his actual loss sustained as well as those items which in all probability he will sustain in the future. There is no legal criterion to guide you in translating into money values such intangibles as pain and suffering. Rather it is left to your good judgment. PJI page 619Author's Comment: The language above is currently found in the Comment at 1B | Damages—General (Plaintiff asks for the following additional language:)The purpose of an award of damages is to restore the aggrieved party to the position which he held prior to injury. This is accomplished by awarding a sum of money which compensates him for his actual loss sustained as well as those items which in all probability he will sustain in the future. There is no legal criterion to guide you in translating into money values such intangibles as pain and suffering. Rather it is left to your good judgment. PJI page 619Author's Comment: The language above is currently found in the Comment at 1B |
| , | NY PJI3d 2:277, |
| at 859 (2018). The Comment of course is addressed to lawyers and judges. For a jury, the particular phrase, “as well as those items which in all probability he will sustain in the future,” might be considered overly supportive of the factual proposition that the plaintiff will sustain damages in the | at 859 (2018). The Comment of course is addressed to lawyers and judges. For a jury, the particular phrase, “as well as those items which in all probability he will sustain in the future,” might be considered overly supportive of the factual proposition that the plaintiff will sustain damages in the |
| future.25. . | future.25. PJI 2:280. |
| Damages—Pain and | Damages—Pain and |
| Suffering26. . | Suffering26. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (loss of enjoyment of | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (loss of enjoyment of |
| life)27. . | life)27. PJI 2:281. |
| Damages—Personal Injury—Permanence (Plaintiff states that the instruction should be presented “including the supplement” with the following language added:)You are further instructed that mental anguish and suffering arising proximately from these injuries which with reasonable certainty can be expected to hereafter endure. . .are a proper element of damages. Plaintiff is now 30 years of age and can be expected to live for 44 more years, that is until age 74 according to the most recent life expectancy tables published by the | Damages—Personal Injury—Permanence (Plaintiff states that the instruction should be presented “including the supplement” with the following language added:)You are further instructed that mental anguish and suffering arising proximately from these injuries which with reasonable certainty can be expected to hereafter endure. . .are a proper element of damages. Plaintiff is now 30 years of age and can be expected to live for 44 more years, that is until age 74 according to the most recent life expectancy tables published by the |
| U.S.28. . | U.S.28. PJI 2:284. |
| Damages—Physical Consequences—Shock/Fright (Plaintiff adds:)Plaintiff May also Recover for. . .. The court instructs you that the plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, humiliation, indignity, embarrassment, apprehension, terror, or ordeal.Mental Distress Is Defined Broadly: You are further instructed that when the law says that a recovery may be had for mental suffering, it means a recovery for something more than that form of mental suffering described as physical pain. It includes the various forms that mental suffering may take, which will vary in each case with the nervous temperament, age, and sex of a person, his or her ability to stand shock, and the nature of the injuries. Mental worry, distress, grief, and mortification, where they are shown to exist, are a proper component of that mental suffering for which the law entitles the injured party to recover in money damages.Author's Comment: The proposed charge differs markedly from | Damages—Physical Consequences—Shock/Fright (Plaintiff adds:)Plaintiff May also Recover for. . .. The court instructs you that the plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, humiliation, indignity, embarrassment, apprehension, terror, or ordeal.Mental Distress Is Defined Broadly: You are further instructed that when the law says that a recovery may be had for mental suffering, it means a recovery for something more than that form of mental suffering described as physical pain. It includes the various forms that mental suffering may take, which will vary in each case with the nervous temperament, age, and sex of a person, his or her ability to stand shock, and the nature of the injuries. Mental worry, distress, grief, and mortification, where they are shown to exist, are a proper component of that mental suffering for which the law entitles the injured party to recover in money damages.Author's Comment: The proposed charge differs markedly from |
| . | PJI 2:284. |
| For an excellent discussion of the law relating to damages for shock and emotional distress, see 1B NY PJI3d 2:284, at 902 to 909 (2018).29. Defendants Responsible for Increased Susceptibility (no PJI reference):In assessing the amount of general damages you deem proper, the jury is also to consider any increased susceptibility to problems and complications which the plaintiff may sustain in the future because of the defendants' | For an excellent discussion of the law relating to damages for shock and emotional distress, see 1B NY PJI3d 2:284, at 902 to 909 (2018).29. Defendants Responsible for Increased Susceptibility (no PJI reference):In assessing the amount of general damages you deem proper, the jury is also to consider any increased susceptibility to problems and complications which the plaintiff may sustain in the future because of the defendants' |
| actions.30. . | actions.30. PJI 2:285. |
| Damages—Personal Injury—Expenses | Damages—Personal Injury—Expenses |
| Incurred31. . | Incurred31. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In | Damages—Personal Injury—Loss of Earnings—In |
| General32. . | General32. PJI 2:301. |
| Damages—Personal Injury—Collateral Sources—Itemized | Damages—Personal Injury—Collateral Sources—Itemized |
| Verdict33. . | Verdict33. PJI 2:283. |
| Damages—Personal Injury—Precipitation or Activation of Latent Disease or Condition (Plaintiff here cites PJI 2:283, | Damages—Personal Injury—Precipitation or Activation of Latent Disease or Condition (Plaintiff here cites PJI 2:283, |
| but |
| attaches a different name to the number.)(Plaintiff concludes with:)IF YOU FIND THAT THE DEFENDANTS WERE NEGLIGENT IN ANY RESPECT AS TO THE PLAINTIFFS AND THAT NEGLIGENCE RESULTED IN THE PLAINTIFF'S INJURIES. THEN YOUR VERDICT WILL BE FOR THE PLAINTIFF. You all do not have to agree on the specific acts of defendant's negligence, but if at least five/six agree that defendant was negligent and the negligence was the proximate cause of plaintiff's injuries, then you must find the defendant was negligent and grant verdict for the plaintiff.C. Case Documents Available on Westlaw1.On appeal: Rivera v. Americo, 9 A.D.3d 356, 780 N.Y.S.2d 27 (2d Dep't 2004)Verdict, Agreement and Settlement (Verdict), 2002 WL 33118431Expert Trial Transcript, 2002 WL 33032374Expert Trial Transcript, 2002 WL 33032375Jury Instruction (Plaintiff's Request to Charge), 2002 WL 33118434Jury Instruction (Defendant's Request to Charge), 2002 WL 33118433Trial Pleading (Verified Complaint), | attaches a different name to the number.)(Plaintiff concludes with:)IF YOU FIND THAT THE DEFENDANTS WERE NEGLIGENT IN ANY RESPECT AS TO THE PLAINTIFFS AND THAT NEGLIGENCE RESULTED IN THE PLAINTIFF'S INJURIES. THEN YOUR VERDICT WILL BE FOR THE PLAINTIFF. You all do not have to agree on the specific acts of defendant's negligence, but if at least five/six agree that defendant was negligent and the negligence was the proximate cause of plaintiff's injuries, then you must find the defendant was negligent and grant verdict for the plaintiff.C. Case Documents Available on Westlaw1.On appeal: Rivera v. Americo, 9 A.D.3d 356, 780 N.Y.S.2d 27 (2d Dep't 2004)Verdict, Agreement and Settlement (Verdict), 2002 WL 33118431Expert Trial Transcript, 2002 WL 33032374Expert Trial Transcript, 2002 WL 33032375Jury Instruction (Plaintiff's Request to Charge), 2002 WL 33118434Jury Instruction (Defendant's Request to Charge), 2002 WL 33118433Trial Pleading (Verified Complaint), |
| 2.Sample | 2000 WL 350153902.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:8 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:8 Premises |
| liability/Failure to cover wheelchair ramp; nerve injury/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Nerve damageCase Name: Joseph Mirando, | liability/Failure to cover wheelchair ramp; nerve injury/One plaintiff, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Nerve damageCase Name: Joseph Mirando, |
| Plaintiff, v. Colonial Centre |
| Co. and K.K.S. Home Remodelers, Inc., Defendant, Defendants.Court: Supreme Court of New York, Suffolk CountyJudge: Denise F. MoliaDocket Number: 26995/98Verdict Date: March 26, 2002Outcome: $499,759 Verdict. Building owner 75% responsible; builder not responsible; plaintiff 25% responsibleBrief Summary of Facts: Plaintiff contended that Defendant building owner contracted with the codefendant contractor to build and install a plywood wheelchair ramp at the entry/exit to Defendant's building where Plaintiff worked. The ramp surface was not protected by carpeting and contained holes and Plaintiff contended that while he was exiting the building on a winter day carrying a ceramic coffee mug, he tripped over a hole in the ramp, fell on his face and suffered nerve injury to his right, dominant hand due to laceration. Plaintiff contended that the nerve injury resulted in loss of sensation and loss of fine motor control which has had a particularly negative impact on the quality of his life. Plaintiff's expert engineer testified that plywood is a composite material not intended to be a final flooring surface and if it is not covered, it will quickly deteriorate and become a tripping hazard.Plaintiff contended that the loss of sensation and fine motor control in his hand made it difficult for him to button his shirt, play guitar, and golf.The jury determined that Defendant contractor built and installed the ramp according to its contract with the codefendant building owner and concluded that Plaintiff was 25% responsible and the building owner 75% liable. The jury then awarded Plaintiff $499,759.91, which included $200,000 past pain and suffering, $250,000 future pain and suffering for 25 years, $9,759.91 medical expenses and $40,000 lost wages.B. Jury Instructions Proposed by | Co. and K.K.S. Home Remodelers, Inc., Defendant, Defendants.Court: Supreme Court of New York, Suffolk CountyJudge: Denise F. MoliaDocket Number: 26995/98Verdict Date: March 26, 2002Outcome: $499,759 Verdict. Building owner 75% responsible; builder not responsible; plaintiff 25% responsibleBrief Summary of Facts: Plaintiff contended that Defendant building owner contracted with the codefendant contractor to build and install a plywood wheelchair ramp at the entry/exit to Defendant's building where Plaintiff worked. The ramp surface was not protected by carpeting and contained holes and Plaintiff contended that while he was exiting the building on a winter day carrying a ceramic coffee mug, he tripped over a hole in the ramp, fell on his face and suffered nerve injury to his right, dominant hand due to laceration. Plaintiff contended that the nerve injury resulted in loss of sensation and loss of fine motor control which has had a particularly negative impact on the quality of his life. Plaintiff's expert engineer testified that plywood is a composite material not intended to be a final flooring surface and if it is not covered, it will quickly deteriorate and become a tripping hazard.Plaintiff contended that the loss of sensation and fine motor control in his hand made it difficult for him to button his shirt, play guitar, and golf.The jury determined that Defendant contractor built and installed the ramp according to its contract with the codefendant building owner and concluded that Plaintiff was 25% responsible and the building owner 75% liable. The jury then awarded Plaintiff $499,759.91, which included $200,000 past pain and suffering, $250,000 future pain and suffering for 25 years, $9,759.91 medical expenses and $40,000 lost wages.B. Jury Instructions Proposed by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus In | Falsus In |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of Proof (Defendant proposes, regarding co-defendant:)Proposed Charge as against KKS Home Remodelers: In this case, you must decide if the defendant K.K.S. Home Remodelers was negligent. In order to recover, the plaintiff must prove that (1) K.K.S. Home Remodelers failed to use that degree of care that a reasonably prudent contractor would have used under similar circumstances and (2) that the defendant's negligence was a substantial factor in causing plaintiff's | Burden of Proof (Defendant proposes, regarding co-defendant:)Proposed Charge as against KKS Home Remodelers: In this case, you must decide if the defendant K.K.S. Home Remodelers was negligent. In order to recover, the plaintiff must prove that (1) K.K.S. Home Remodelers failed to use that degree of care that a reasonably prudent contractor would have used under similar circumstances and (2) that the defendant's negligence was a substantial factor in causing plaintiff's |
| injury.5. . | injury.5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude | Exclude |
| Sympathy9. . Conclusion10. . | Sympathy9. PJI 1:28. Conclusion10. PJI 1:39. |
| No Inference from | No Inference from |
| Rulings11. . | Rulings11. PJI 1:41. |
| Weighing | Weighing |
| Testimony12. . | Testimony12. PJI 1:60. |
| Burden of | Burden of |
| Proof13. . | Proof13. PJI 1:65. |
| Evidence Admitted for Limited | Evidence Admitted for Limited |
| Purpose14. . | Purpose14. PJI 1:70. |
| Circumstantial | Circumstantial |
| Evidence15. . | Evidence15. PJI 1:90. |
| General Instructions—Expert | General Instructions—Expert |
| Witnesses16. . | Witnesses16. PJI 1:91. |
| Interested | Interested |
| Witness—Generally17. . | Witness—Generally17. PJI 1:92. |
| Interested Witness—Employee of | Interested Witness—Employee of |
| Party18. . | Party18. PJI 1:94. |
| Use of Pre-Trial Deposition Upon | Use of Pre-Trial Deposition Upon |
| Trial19. . | Trial19. PJI 1:97. |
| Special | Special |
| Verdicts20. . | Verdicts20. PJI 2:10. |
| Negligence Defined—Generally (Defendant proposes, regarding co-defendant:)You must first consider whether the defendant acted in negligent manner in constructing the ramp. Negligence is the failure to use reasonable care. It is a failure to use that degree of care that a reasonably [sic] contractor would have used under the same circumstances. Negligence may arise from doing an act that a reasonably [sic] contractor would not have done under similar circumstances, or on the other hand, from failing to do an act that a reasonably prudent contractor would have done under the same circumstances. Negligence includes both a foreseeable danger of injury to another and conduct which is unreasonable in proportion to the | Negligence Defined—Generally (Defendant proposes, regarding co-defendant:)You must first consider whether the defendant acted in negligent manner in constructing the ramp. Negligence is the failure to use reasonable care. It is a failure to use that degree of care that a reasonably [sic] contractor would have used under the same circumstances. Negligence may arise from doing an act that a reasonably [sic] contractor would not have done under similar circumstances, or on the other hand, from failing to do an act that a reasonably prudent contractor would have done under the same circumstances. Negligence includes both a foreseeable danger of injury to another and conduct which is unreasonable in proportion to the |
| danger.21. . Foreseeability—Generally22. . | danger.21. PJI 2:12. Foreseeability—Generally22. PJI 2:36. |
| Comparative | Comparative |
| Negligence23. . | Negligence23. PJI 2:55. |
| Implied Assumption of | Implied Assumption of |
| Risk24. . | Risk24. PJI 2:70. |
| Proximate Cause (Defendant proposes, regarding co-defendant:)If you decide that K.K.S. Home Remodelers acted in a reasonable manner in constructing the ramp, you will find for the defendant and proceed no further. If you decide that K.K.S. did not act in a reasonable manner in constructing the ramp, you must next consider whether that negligence was a substantial factor in causing plaintiff's injury. An act or failure to act is a substantial factor in bringing about an injury if a reasonably prudent person would regard it as a cause of the injury. If you find that K.K.S. Home Remodelers' negligence was not a substantial factor in causing the injury, then plaintiff may not recover. If you find that K.K.S. Home Remodelers' negligence was a substantial factor in causing plaintiff's injury, you will proceed to consider (state next appropriate step, e.g. comparative fault, damages, | Proximate Cause (Defendant proposes, regarding co-defendant:)If you decide that K.K.S. Home Remodelers acted in a reasonable manner in constructing the ramp, you will find for the defendant and proceed no further. If you decide that K.K.S. did not act in a reasonable manner in constructing the ramp, you must next consider whether that negligence was a substantial factor in causing plaintiff's injury. An act or failure to act is a substantial factor in bringing about an injury if a reasonably prudent person would regard it as a cause of the injury. If you find that K.K.S. Home Remodelers' negligence was not a substantial factor in causing the injury, then plaintiff may not recover. If you find that K.K.S. Home Remodelers' negligence was a substantial factor in causing plaintiff's injury, you will proceed to consider (state next appropriate step, e.g. comparative fault, damages, |
| verdict)25. . | verdict)25. PJI 2:90. |
| Possessor's Liability for Condition or Use of Premises (Defendant adds:) as against Colonial Centre Company only26. No corresponding pattern instruction, although it is similar to | Possessor's Liability for Condition or Use of Premises (Defendant adds:) as against Colonial Centre Company only26. No corresponding pattern instruction, although it is similar to |
| PJI 2:77.1 |
| Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental Instruction].Supplemental Charge: A plaintiff was bound to look where he is going and to see the ramp conditions that a reasonably prudent person would see with the proper use of his senses, given the conditions and circumstances that existed at the time and place of the occurrence. Weingand v. United Traction Co, 221 N.Y. 39 (1917).C. Case Documents Available on Westlaw1.Jury Instruction 2002 WL 32921300Verdict and Settlement Summary, 2002 WL 1919357Verdict, Agreement and Settlement (Undertaking), 2002 WL 32921304Trial Motion, Memorandum and Affidavit (Reply Affirmation), | Motor Vehicle Accidents—Duty Toward Other Motorists, in General [Supplemental Instruction].Supplemental Charge: A plaintiff was bound to look where he is going and to see the ramp conditions that a reasonably prudent person would see with the proper use of his senses, given the conditions and circumstances that existed at the time and place of the occurrence. Weingand v. United Traction Co, 221 N.Y. 39 (1917).C. Case Documents Available on Westlaw1.Jury Instruction 2002 WL 32921300Verdict and Settlement Summary, 2002 WL 1919357Verdict, Agreement and Settlement (Undertaking), 2002 WL 32921304Trial Motion, Memorandum and Affidavit (Reply Affirmation), |
| Trial | 2002 WL 34182458Trial |
| Motion, Memorandum and Affidavit (Affirmation in Opposition), | Motion, Memorandum and Affidavit (Affirmation in Opposition), |
| 2002 |
| WL | WL |
| 32921992, 2002 WL |
| 34182459Trial Motion, Memorandum and Affidavit, 2002 WL 34182460Verdict, Agreement and Settlement, 2002 WL 32921305, 2002 WL 32921306Partial Expert Testimony, 2002 WL 32925229Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Cross-Motion for Summary Judgment), 2001 WL 34834267Expert Report and Affidavit (Supplemental Affidavit), 2001 WL 35978187Trial Motion, Memorandum and Affidavit (Affirmation in Support), 2001 WL 34834265Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Summary Judgment), 2001 WL 34834268Expert Report and Affidavit (Affidavit), 2001 WL 35978188Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion for Summary Judgment), 2001 WL 34834266Expert Report and Affidavit, 2000 WL 34562001Trial Pleading (Verified Complaint), 1999 WL 33972794Proposed Order, Agreement and Settlement (Judgment), | 34182459Trial Motion, Memorandum and Affidavit, 2002 WL 34182460Verdict, Agreement and Settlement, 2002 WL 32921305, 2002 WL 32921306Partial Expert Testimony, 2002 WL 32925229Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Cross-Motion for Summary Judgment), 2001 WL 34834267Expert Report and Affidavit (Supplemental Affidavit), 2001 WL 35978187Trial Motion, Memorandum and Affidavit (Affirmation in Support), 2001 WL 34834265Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Summary Judgment), 2001 WL 34834268Expert Report and Affidavit (Affidavit), 2001 WL 35978188Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion for Summary Judgment), 2001 WL 34834266Expert Report and Affidavit, 2000 WL 34562001Trial Pleading (Verified Complaint), 1999 WL 33972794Proposed Order, Agreement and Settlement (Judgment), |
| 2.Sample | 1998 WL 343605872.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:9 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:9 Premises |
| liability/Flooded elevator; knee cartilage injury/Two plaintiffs, two named defendants, plus Does 1–10A. BackgroundType of Case: Premises liabilityType of Injury: Knee cartilage injuryCase Name: Frane Olic and Ljubica Olic, Plaintiffs, v. Alliance Holdings, Inc., M&T Industrial Plumbing and Heating Company, Inc., and Does 1–10, Defendants.Court: Supreme Court of New York, New York CountyJudge: Paula J. OmanskyDocket Number: 108060/96Verdict Date: September 20, 2000Outcome: Verdict for Defendant Alliance. The actions against M&T Industrial Plumbing and Heating Company, Inc. & Does 1–10 were disposed before trial.Brief Summary of Facts: A 65-year-old suffered a knee cartilage injury, which resulted in multiple surgeries, when he became trapped in a flooded elevator in the basement of Defendant's apartment building, where he was a tenant. Plaintiff contended that Defendant failed to maintain its premises in a safe condition, that it negligently allowed water pipes to burst in the basement and that it failed to remedy or warn of the leaky pipes. Defendant denied liability and contended that Plaintiff was the superintendent of the building, that he failed to inspect and repair the leaky sprinkler system and that his preexisting arthritis was unrelated to this incident.B. Jury Instructions Proposed by | liability/Flooded elevator; knee cartilage injury/Two plaintiffs, two named defendants, plus Does 1–10A. BackgroundType of Case: Premises liabilityType of Injury: Knee cartilage injuryCase Name: Frane Olic and Ljubica Olic, Plaintiffs, v. Alliance Holdings, Inc., M&T Industrial Plumbing and Heating Company, Inc., and Does 1–10, Defendants.Court: Supreme Court of New York, New York CountyJudge: Paula J. OmanskyDocket Number: 108060/96Verdict Date: September 20, 2000Outcome: Verdict for Defendant Alliance. The actions against M&T Industrial Plumbing and Heating Company, Inc. & Does 1–10 were disposed before trial.Brief Summary of Facts: A 65-year-old suffered a knee cartilage injury, which resulted in multiple surgeries, when he became trapped in a flooded elevator in the basement of Defendant's apartment building, where he was a tenant. Plaintiff contended that Defendant failed to maintain its premises in a safe condition, that it negligently allowed water pipes to burst in the basement and that it failed to remedy or warn of the leaky pipes. Defendant denied liability and contended that Plaintiff was the superintendent of the building, that he failed to inspect and repair the leaky sprinkler system and that his preexisting arthritis was unrelated to this incident.B. Jury Instructions Proposed by |
| Plaintiff1. . | Plaintiff1. PJI 2:91. |
| Liability for Condition of Land—Possessor's Liability—Unsafe Condition (Plaintiff requests that first two paragraphs of instruction be delivered verbatim. Then, Plaintiff requests the following language:)It is undisputed that as a result of the flooding of the basement the premises was not in a reasonably safe condition. So next you must consider whether the defendant was negligent.(Plaintiff returns to pattern instruction paragraph 4, but omits “or provide reasonable safeguards or give an appropriate warning,” and “or to provide reasonable safeguards to prevent injury, or to give a reasonable warning.” Rather than “in a safe condition,” Plaintiff says “in a reasonably safe condition.”)(In paragraph 5, Plaintiff omits two references to providing reasonable safeguards or giving a reasonable warning.)(In final paragraph, Plaintiff concludes with:)[Y]ou will proceed to consider what percentage, if any, plaintiff's conduct may have contributed to the | Liability for Condition of Land—Possessor's Liability—Unsafe Condition (Plaintiff requests that first two paragraphs of instruction be delivered verbatim. Then, Plaintiff requests the following language:)It is undisputed that as a result of the flooding of the basement the premises was not in a reasonably safe condition. So next you must consider whether the defendant was negligent.(Plaintiff returns to pattern instruction paragraph 4, but omits “or provide reasonable safeguards or give an appropriate warning,” and “or to provide reasonable safeguards to prevent injury, or to give a reasonable warning.” Rather than “in a safe condition,” Plaintiff says “in a reasonably safe condition.”)(In paragraph 5, Plaintiff omits two references to providing reasonable safeguards or giving a reasonable warning.)(In final paragraph, Plaintiff concludes with:)[Y]ou will proceed to consider what percentage, if any, plaintiff's conduct may have contributed to the |
| accident.2. . | accident.2. PJI 2:65. |
| Res Ipsa Loquitur (Plaintiff requests this instruction verbatim, specifying that the instrumentality causing the injury was the sprinkler | Res Ipsa Loquitur (Plaintiff requests this instruction verbatim, specifying that the instrumentality causing the injury was the sprinkler |
| piping.)3. . | piping.)3. PJI 2:29. |
| Statutory Standard of Care—Ordinances or Regulations (Plaintiff requests the following ordinance:)Section 1503, et seq. of the Rules and Regulations of the City of New York provides as follows at 1503.9:(a) Sprinkler systems shall be maintained in operative condition, free from mechanical damage, structural failure, water failure or obstruction during the period that the buildings are occupied.(b) Sprinkler systems shall be inspected by a competent person satisfactory to the department. Such inspection shall be made at least once every three months during the period that the buildings are occupied and within one week prior to the resumption of occupancy after the buildings have been vacant for a period exceeding one month. Such person shall be responsible for the making of all tests to see that all parts of the system are in good repair and working order. A detailed record of each inspection shall be kept, and records shall be open to examination by the department.C. Case Documents Available on Westlaw1.Appeal of denial of motion for summary judgment: Olic v. Alliance Holdings, Inc., 273 A.D.2d 109, 710 N.Y.S.2d 885 (1st Dep't 2000)Verdict and Settlement Summary, 2000 WL 34247926Verdict, Agreement and Settlement (Verdict Sheet), 2000 WL 34556915Trial Order, 2000 WL 35493630Jury Instruction (Jury Charge), 2000 WL 34556911Trial Motion, Memorandum and Affidavit (Affirmation in Opposition), 2000 WL 34556558Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion), 1999 WL 33971331Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion), 1999 WL 34811054Trial Motion, Memorandum and Affidavit (Affirmation in Support of Alliance's Cross-Motion for Summary Judgment and in Opposition to | Statutory Standard of Care—Ordinances or Regulations (Plaintiff requests the following ordinance:)Section 1503, et seq. of the Rules and Regulations of the City of New York provides as follows at 1503.9:(a) Sprinkler systems shall be maintained in operative condition, free from mechanical damage, structural failure, water failure or obstruction during the period that the buildings are occupied.(b) Sprinkler systems shall be inspected by a competent person satisfactory to the department. Such inspection shall be made at least once every three months during the period that the buildings are occupied and within one week prior to the resumption of occupancy after the buildings have been vacant for a period exceeding one month. Such person shall be responsible for the making of all tests to see that all parts of the system are in good repair and working order. A detailed record of each inspection shall be kept, and records shall be open to examination by the department.C. Case Documents Available on Westlaw1.Appeal of denial of motion for summary judgment: Olic v. Alliance Holdings, Inc., 273 A.D.2d 109, 710 N.Y.S.2d 885 (1st Dep't 2000)Verdict and Settlement Summary, 2000 WL 34247926Verdict, Agreement and Settlement (Verdict Sheet), 2000 WL 34556915Trial Order, 2000 WL 35493630Jury Instruction (Jury Charge), 2000 WL 34556911Trial Motion, Memorandum and Affidavit (Affirmation in Opposition), 2000 WL 34556558Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion), 1999 WL 33971331Trial Motion, Memorandum and Affidavit (Affirmation in Support of Motion), 1999 WL 34811054Trial Motion, Memorandum and Affidavit (Affirmation in Support of Alliance's Cross-Motion for Summary Judgment and in Opposition to |
| Trial | Olic's Cross-Motion), 1999 WL 33971330Trial |
| Motion, Memorandum and Affidavit (Brief in Support of Plaintiffs' Cross Motion for Summary Judgment), 1999 WL 33971329Trial Motion, Memorandum and Affidavit (Affirmation), 1999 WL 33971328Trial Motion, Memorandum and Affidavit (Affirmation), 1999 WL 34811053Trial Deposition and Discovery (Demand for a Bill of Particulars), 1997 WL 33824243Trial Pleading (Answer to Complaint With Cross Claim), 1997 WL 33824231Trial Pleading (Verified Answer), 1996 WL 33682917Trial Pleading (Verified Complaint), | Motion, Memorandum and Affidavit (Brief in Support of Plaintiffs' Cross Motion for Summary Judgment), 1999 WL 33971329Trial Motion, Memorandum and Affidavit (Affirmation), 1999 WL 33971328Trial Motion, Memorandum and Affidavit (Affirmation), 1999 WL 34811053Trial Deposition and Discovery (Demand for a Bill of Particulars), 1997 WL 33824243Trial Pleading (Answer to Complaint With Cross Claim), 1997 WL 33824231Trial Pleading (Verified Answer), 1996 WL 33682917Trial Pleading (Verified Complaint), |
| 2.Sample | 1996 WL 336829162.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:10 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:10 Premises |
| liability/Bicycle accident; unspecified injuries and mental anguish/Two plaintiffs, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Unspecified physical injuries and mental anguishCase Name: David Salomone and Gail Salomone, Plaintiffs, v. Smithtown Shoppers Mart and Raimondo Contracting Corp., DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Harry E. SeidellDocket Number: 16129/95Verdict Date: February 10, 2000Outcome: Verdict for Defendant.Brief Summary of Facts: Plaintiff was riding bicycle on bicycle path crossing property of Defendant property owner, at which location the Defendant construction companies were performing construction work. Debris on the bicycle path allegedly caused Plaintiff to sustain injuries and mental anguish. No signs or barriers warned of the danger. Plaintiff's wife claims damages for loss of her husband's services.B. Jury Instructions Proposed by | liability/Bicycle accident; unspecified injuries and mental anguish/Two plaintiffs, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Unspecified physical injuries and mental anguishCase Name: David Salomone and Gail Salomone, Plaintiffs, v. Smithtown Shoppers Mart and Raimondo Contracting Corp., DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Harry E. SeidellDocket Number: 16129/95Verdict Date: February 10, 2000Outcome: Verdict for Defendant.Brief Summary of Facts: Plaintiff was riding bicycle on bicycle path crossing property of Defendant property owner, at which location the Defendant construction companies were performing construction work. Debris on the bicycle path allegedly caused Plaintiff to sustain injuries and mental anguish. No signs or barriers warned of the danger. Plaintiff's wife claims damages for loss of her husband's services.B. Jury Instructions Proposed by |
| Defendant1. . Introduction2. . | Defendant1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles Stated (Defendant omits: “You are not to ask anyone else about the | Review Principles Stated (Defendant omits: “You are not to ask anyone else about the |
| law.”)3. . | law.”)3. PJI 1:91. |
| Interested | Interested |
| Witness—Generally4. . | Witness—Generally4. PJI 1:22. |
| Falsus In Uno (Defendant uses “unworthy of belief” rather than | Falsus In Uno (Defendant uses “unworthy of belief” rather than |
| “unbelievable.”)5. . | “unbelievable.”)5. PJI 1:23. |
| Burden of Proof (Defendant, after “in favor of the defendants,” adds “and third-party | Burden of Proof (Defendant, after “in favor of the defendants,” adds “and third-party |
| defendants.”)6. . | defendants.”)6. PJI 1:24. |
| Return to Courtroom (Defendant omits: “or have such question | Return to Courtroom (Defendant omits: “or have such question |
| answered.”)7. . | answered.”)7. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits8. . | Exhibits8. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict9. . | Verdict9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy10. . | Sympathy10. PJI 2:10. |
| Negligence Defined (Defendant replaces the word “use” with | Negligence Defined (Defendant replaces the word “use” with |
| “exercise.”)11. . | “exercise.”)11. PJI 2:12. |
| Foreseeability (Defendant reverses the order of the two sentences of the second paragraph; hence:)If a reasonably prudent person could not foresee any injury as a result of his conduct, or if his conduct was reasonable in the light of what he could foresee, there is no negligence. Conversely, there is negligence if a reasonably prudent person could foresee injury as a result of his conduct, and his conduct was unreasonable in the light of what he could | Foreseeability (Defendant reverses the order of the two sentences of the second paragraph; hence:)If a reasonably prudent person could not foresee any injury as a result of his conduct, or if his conduct was reasonable in the light of what he could foresee, there is no negligence. Conversely, there is negligence if a reasonably prudent person could foresee injury as a result of his conduct, and his conduct was unreasonable in the light of what he could |
| foresee.12. . | foresee.12. PJI 2:70. |
| Proximate Cause (Defendant adds the word “only” before “if” in the first sentence; Defendant does not include pattern instruction sentence regarding comparative fault, but adds a sentence on the percentage of fault that can be apportioned to a party. The entire instruction reads:)An act or omission is regarded as a cause of an injury only if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. Whether the negligence of a particular party was a substantial factor in causing an injury does not necessarily depend on the percentage of fault that may be apportioned to that | Proximate Cause (Defendant adds the word “only” before “if” in the first sentence; Defendant does not include pattern instruction sentence regarding comparative fault, but adds a sentence on the percentage of fault that can be apportioned to a party. The entire instruction reads:)An act or omission is regarded as a cause of an injury only if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. Whether the negligence of a particular party was a substantial factor in causing an injury does not necessarily depend on the percentage of fault that may be apportioned to that |
| party.13. . | party.13. PJI 2:91. |
| Possessor's Liability—Unsafe Condition (Defendant customizes paragraph 3 for this lawsuit:)You must first consider whether the premises were in a reasonably safe condition. Plaintiff claims that he fell in the rear of the Branch Shopping Center behind the Grand Union Store because of the presence of debris. Defendants deny that there was any debris present. Defendants also claim that if debris was there, its presence did not create an unsafe condition. You must decide whether debris was present, and if it was, whether a reasonably prudent person would have anticipated that the condition it created was not reasonably safe for persons using the rear of the shopping center. If you decide that debris was not present or, if it was, that it did not create an unsafe condition, you will find for defendants and proceed no further. If you decide that there was debris on the ground in the rear of the shopping center, and that its presence created an unsafe condition, you must next consider whether defendants were negligent.Author's Comment: | Possessor's Liability—Unsafe Condition (Defendant customizes paragraph 3 for this lawsuit:)You must first consider whether the premises were in a reasonably safe condition. Plaintiff claims that he fell in the rear of the Branch Shopping Center behind the Grand Union Store because of the presence of debris. Defendants deny that there was any debris present. Defendants also claim that if debris was there, its presence did not create an unsafe condition. You must decide whether debris was present, and if it was, whether a reasonably prudent person would have anticipated that the condition it created was not reasonably safe for persons using the rear of the shopping center. If you decide that debris was not present or, if it was, that it did not create an unsafe condition, you will find for defendants and proceed no further. If you decide that there was debris on the ground in the rear of the shopping center, and that its presence created an unsafe condition, you must next consider whether defendants were negligent.Author's Comment: |
| —which | PJI 2:91—which |
| was revised recently to incorporate the open-and-obvious doctrine, which relieves a defendant of the duty to warn of it unsafe condition that is open and obvious to a reasonable person, is one of many pattern charges that are intended to vary with the particular facts of the case. The Comment, 1A | was revised recently to incorporate the open-and-obvious doctrine, which relieves a defendant of the duty to warn of it unsafe condition that is open and obvious to a reasonable person, is one of many pattern charges that are intended to vary with the particular facts of the case. The Comment, 1A |
| , | NY PJI3d 2:91, |
| at 653 to 666 (2018), contains an authoritative discussion of the law pertaining to various categories of unsafe conditions, including | at 653 to 666 (2018), contains an authoritative discussion of the law pertaining to various categories of unsafe conditions, including |
| specifically:Washing | specifically:•Washing |
| floor or | floor or |
| stairsWet weatherWax | stairs•Wet weather•Wax |
| or | or |
| oilMiscellaneous | oil•Miscellaneous |
| Substances and | Substances and |
| ItemsOther | Items•Other |
| dangerous | dangerous |
| conditions14. . | conditions14. PJI 2:36. |
| Comparative Negligence—Bifurcated Trial (Defendant combines | Comparative Negligence—Bifurcated Trial (Defendant combines |
| PJI 2:36 |
| and | and |
| . | 2:36.1. |
| In the first sentence, Defendant replaces “the defendant” with “any of the defendants.” In paragraph 2, Defendant chooses the option for a bifurcated trial. In paragraph 4, Defendant replaces the word “fault” with the word “negligence,” and replaces “ fault of both the plaintiff and the defendant” with “negligence of plaintiff and the defendants which contributed to causing plaintiff's injuries.” Defendant alters pattern instruction 2:36.1 because of the multiple defendants:)For example, if you should find that each of the defendants and the plaintiff were equally negligent you would report that each were the same percentage. If you should find that one party was more negligent than the others in causing plaintiff's injuries, you would assign a higher percentage to that party and a lower percentage to the others, with the total of the percentages equaling one hundred | In the first sentence, Defendant replaces “the defendant” with “any of the defendants.” In paragraph 2, Defendant chooses the option for a bifurcated trial. In paragraph 4, Defendant replaces the word “fault” with the word “negligence,” and replaces “ fault of both the plaintiff and the defendant” with “negligence of plaintiff and the defendants which contributed to causing plaintiff's injuries.” Defendant alters pattern instruction 2:36.1 because of the multiple defendants:)For example, if you should find that each of the defendants and the plaintiff were equally negligent you would report that each were the same percentage. If you should find that one party was more negligent than the others in causing plaintiff's injuries, you would assign a higher percentage to that party and a lower percentage to the others, with the total of the percentages equaling one hundred |
| percent.15. . | percent.15. PJI 2:55. |
| Implied Assumption of Risk (In paragraph 1, Defendant chooses option applicable where the issue of liability is tried separately. In paragraph 2, the injurious activity is specified as: “he rode his bicycle.”)Author's Comment: A useful Comment on implied assumption of risk can be found at 1A | Implied Assumption of Risk (In paragraph 1, Defendant chooses option applicable where the issue of liability is tried separately. In paragraph 2, the injurious activity is specified as: “he rode his bicycle.”)Author's Comment: A useful Comment on implied assumption of risk can be found at 1A |
| , | NY PJI3d 2:55, |
| at 376 to 407 | at 376 to 407 |
| (2018).16. . | (2018).16. PJI 2:275. |
| Comparative Fault—Apportionment of Fault Between | Comparative Fault—Apportionment of Fault Between |
| Defendants17. . | Defendants17. PJI 1:97. |
| Special | Special |
| Verdicts18. . | Verdicts18. PJI 1:28. |
| Conclusion (Defendant omits: “Your first order of business when you are in the jury room will be the election of a | Conclusion (Defendant omits: “Your first order of business when you are in the jury room will be the election of a |
| foreperson.”)19. | foreperson.”)19. PJI 1:29 |
| Alternate Jurors.C. Case Documents Available on Westlaw1.Trial Orders, | Alternate Jurors.C. Case Documents Available on Westlaw1.Trial Orders, |
| , , | 2000 WL 35533528, 2000 WL 35487131, |
| 1999 WL 34805942, 1998 WL 35179443Verdict, Agreement and Settlement (Verdict Sheet), 2000 WL 35533900Jury Instruction (Defendant's Request for Jury Instructions), 2000 WL 34600877Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Plaintiffs' Motion to Set Aside the Verdict and in Support of Third and Second Third-Party Defendant's Cross-Motion to Confirm the Judgment), 2000 WL 34600480Trial Motion, Memorandum and Affidavit (Affirmation in Support of Cross-Motion and in Opposition to Plaintiffs' Motion), 2000 WL 34600479Trial Motion, Memorandum and Affidavit (Affirmation in Opposition and Reply Affirmation), 2000 WL 34600482Trial Pleading (Verified Third-Party Complaint), 1997 WL 33831046Trial Pleading (Verified Answer), 1995 WL 17221945Trial Pleading (Amended Verified Complaint), 1995 WL 17221946Trial Pleading (Verified Complaint), 1995 WL 17221947Trial Motion, Memorandum and Affidavit (Reply Affirmations), | 1999 WL 34805942, 1998 WL 35179443Verdict, Agreement and Settlement (Verdict Sheet), 2000 WL 35533900Jury Instruction (Defendant's Request for Jury Instructions), 2000 WL 34600877Trial Motion, Memorandum and Affidavit (Affirmation in Opposition to Plaintiffs' Motion to Set Aside the Verdict and in Support of Third and Second Third-Party Defendant's Cross-Motion to Confirm the Judgment), 2000 WL 34600480Trial Motion, Memorandum and Affidavit (Affirmation in Support of Cross-Motion and in Opposition to Plaintiffs' Motion), 2000 WL 34600479Trial Motion, Memorandum and Affidavit (Affirmation in Opposition and Reply Affirmation), 2000 WL 34600482Trial Pleading (Verified Third-Party Complaint), 1997 WL 33831046Trial Pleading (Verified Answer), 1995 WL 17221945Trial Pleading (Amended Verified Complaint), 1995 WL 17221946Trial Pleading (Verified Complaint), 1995 WL 17221947Trial Motion, Memorandum and Affidavit (Reply Affirmations), |
| , | 2000 |
| WL | WL |
| 34600481, 1997 WL 33831030, 1997 WL |
| 34627933Trial Motion, Memorandum and Affidavit (Affirmations in Opposition), | 34627933Trial Motion, Memorandum and Affidavit (Affirmations in Opposition), |
| 1997 |
| WL | WL |
| 33831031, 1997 WL |
| 34627932Trial Motion, Memorandum and Affidavit (Memorandum of Law), 1997 WL 34627931Trial Motion, Memorandum and Affidavit (Affirmations in Support), | 34627932Trial Motion, Memorandum and Affidavit (Memorandum of Law), 1997 WL 34627931Trial Motion, Memorandum and Affidavit (Affirmations in Support), |
| , | 2000 |
| WL | WL |
| 34600478, 1997 WL 33831029, 1997 WL |
| 34627934Trial Filing, | 34627934Trial Filing, |
| 2.Sample | 1997 WL 338310232.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:11 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:11 Premises |
| liability/Unexpected drop in roadway; back injury/One plaintiff, two defendants (plus third-party plaintiff and defendant)A. BackgroundType of Case: Premises liability; Labor Law violationType of Injury: Back injuryCase Name: Darrell H. Clause, Jr. and Mary Annette Clause, Plaintiffs, v. E.I. Du Pont Nemours and Company, Scrufari Construction Co., Inc., Defendants; Scrufari Construction Co., Inc., Third-Party Plaintiff, v. Higgins Erectors & Haulers, Inc., Third-Party Defendant.Court: Supreme Court of New York, Niagara CountyJudge: Jacqueline M. KoshianDocket Number: 080237/93Verdict Date: Sept. 21, 1999Outcome: Damages for medical expenses and past and future lost wages, no damages for past and future pain and suffering. No damages on wife's derivative claim. Verdict against employer set aside by Court. Appeals court reinstated verdict against employer, and ordered new trial on damages for past and future pain and suffering.Brief Summary of Facts: Plaintiff brought action to recover damages for personal injuries at a construction site owned by Defendant E.I. DuPont De Nemours & Company. Defendant Scrufari Construction Co., Inc. was the general contractor on the project, and Plaintiff's employer, third-party defendant Higgins Erectors & Haulers, Inc., was a subcontractor. Plaintiff was injured while being transported to the worksite in the bed of a pickup truck owned by Higgins and operated by a co-worker. The truck drove over railroad tracks that had a sharp drop, resulting in an injury to Plaintiff's back. Jury found a violation of N.Y. Labor Law § 241(6) and that the violation was a substantial factor in causing Plaintiff's injuries. Jury also found that Higgins was negligent and that its negligence was a substantial factor in causing plaintiff's injuries. Jury awarded Plaintiff damages for medical expenses and past and future lost wages, but failed to award him any damages for past and future pain and suffering. The jury also failed to award plaintiff's wife any damages on her derivative claim.Court granted Defendants' motions setting aside jury's verdict finding a violation by Higgins of N.Y. Labor Law § 241(6) and that the violation was a substantial cause of Plaintiff's injuries and granting a new trial on liability and damages.Appeals court reversed the trial court's setting aside of the jury verdict regarding Higgins' violation of the Labor Law. It also granted Plaintiff's motion to set aside those portions of the verdict that awarded plaintiff no damages for past and future pain on the grounds that those portions of the verdict are inconsistent and contrary to the weight of the evidence. The appeals court granted a new trial on damages for past and future suffering.B. Jury Instructions1. Jury Instructions Proposed by | liability/Unexpected drop in roadway; back injury/One plaintiff, two defendants (plus third-party plaintiff and defendant)A. BackgroundType of Case: Premises liability; Labor Law violationType of Injury: Back injuryCase Name: Darrell H. Clause, Jr. and Mary Annette Clause, Plaintiffs, v. E.I. Du Pont Nemours and Company, Scrufari Construction Co., Inc., Defendants; Scrufari Construction Co., Inc., Third-Party Plaintiff, v. Higgins Erectors & Haulers, Inc., Third-Party Defendant.Court: Supreme Court of New York, Niagara CountyJudge: Jacqueline M. KoshianDocket Number: 080237/93Verdict Date: Sept. 21, 1999Outcome: Damages for medical expenses and past and future lost wages, no damages for past and future pain and suffering. No damages on wife's derivative claim. Verdict against employer set aside by Court. Appeals court reinstated verdict against employer, and ordered new trial on damages for past and future pain and suffering.Brief Summary of Facts: Plaintiff brought action to recover damages for personal injuries at a construction site owned by Defendant E.I. DuPont De Nemours & Company. Defendant Scrufari Construction Co., Inc. was the general contractor on the project, and Plaintiff's employer, third-party defendant Higgins Erectors & Haulers, Inc., was a subcontractor. Plaintiff was injured while being transported to the worksite in the bed of a pickup truck owned by Higgins and operated by a co-worker. The truck drove over railroad tracks that had a sharp drop, resulting in an injury to Plaintiff's back. Jury found a violation of N.Y. Labor Law § 241(6) and that the violation was a substantial factor in causing Plaintiff's injuries. Jury also found that Higgins was negligent and that its negligence was a substantial factor in causing plaintiff's injuries. Jury awarded Plaintiff damages for medical expenses and past and future lost wages, but failed to award him any damages for past and future pain and suffering. The jury also failed to award plaintiff's wife any damages on her derivative claim.Court granted Defendants' motions setting aside jury's verdict finding a violation by Higgins of N.Y. Labor Law § 241(6) and that the violation was a substantial cause of Plaintiff's injuries and granting a new trial on liability and damages.Appeals court reversed the trial court's setting aside of the jury verdict regarding Higgins' violation of the Labor Law. It also granted Plaintiff's motion to set aside those portions of the verdict that awarded plaintiff no damages for past and future pain on the grounds that those portions of the verdict are inconsistent and contrary to the weight of the evidence. The appeals court granted a new trial on damages for past and future suffering.B. Jury Instructions1. Jury Instructions Proposed by |
| Plaintiff1. | Plaintiff1. PJI 2:216A |
| Injured employee—Violation of Industrial Rule—Vicarious Liability—Nondelegable Duty of Owner/Subcontractor—Labor Law § 241 (6) (Plaintiff modifies as follows:)Mr. Clause claims that Defendant Du Pont, the owner of the site, and Defendant Scrufari, the general contractor for the project, are liable for his injuries under § 241(6) of the New York State Labor Law. | Injured employee—Violation of Industrial Rule—Vicarious Liability—Nondelegable Duty of Owner/Subcontractor—Labor Law § 241 (6) (Plaintiff modifies as follows:)Mr. Clause claims that Defendant Du Pont, the owner of the site, and Defendant Scrufari, the general contractor for the project, are liable for his injuries under § 241(6) of the New York State Labor Law. |
| Section 241(6) |
| requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein. . .” The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, Mr. Clause claims that Rule 23-9.7(e) was violated. That Rule reads as follows:(e) Riding. No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.Under Labor Law § 241(6), the owner of an area and the general contractor for a construction project where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of the general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the work in that area. The owner and contractor are liable for an injury due to the failure of a subcontractor to use reasonable care even though neither the owner nor the general contractor did not control or supervise the area or the work being done there and did not or could not know of any danger to Mr. Clause.In this case, Mr. Clause claims that Du Pont, the owner, and Scrufari, the general contractor, are liable to him for his injury because of the failure of Du Pont and Higgins to use reasonable care. The only evidence of Du Pont's and Higgins' claimed failure to use reasonable care that you may consider in connection with the liability of Du Pont and Scrufari to Mr. Clause is evidence relating to the claimed violation of Rule 23-9.7(e) by Du Pont and Higgins. Mr. Clause claims that the Rule was violated because he was required by Du Pont and Higgins to sit in the flat open bed of a pickup truck. Violation of this Rule by Du Pont or by Higgins would constitute some evidence of their respective failure to use reasonable care. Du Pont and Higgins deny that this Rule was violated or that they failed to use reasonable care.In deciding whether Du Pont, the land owner and Scrufari, the general contractor, are liable to the Plaintiff because of the claimed failure of Du Pont and Higgins to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule 23-9.7(e). If you find that there was a violation of Rule 23-9.7(e) and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing Mr. Clause's injuries, you will find for the Plaintiff against Defendant, Du Pont and against Defendant, Scrufari on this issue. If you find that neither Du Pont, nor Scrufari, nor Higgins violated Rule 23-9.7(e), or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing Mr. Clause's injuries, you will find for Du Pont and Scrufari on this | requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein. . .” The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, Mr. Clause claims that Rule 23-9.7(e) was violated. That Rule reads as follows:(e) Riding. No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.Under Labor Law § 241(6), the owner of an area and the general contractor for a construction project where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of the general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the work in that area. The owner and contractor are liable for an injury due to the failure of a subcontractor to use reasonable care even though neither the owner nor the general contractor did not control or supervise the area or the work being done there and did not or could not know of any danger to Mr. Clause.In this case, Mr. Clause claims that Du Pont, the owner, and Scrufari, the general contractor, are liable to him for his injury because of the failure of Du Pont and Higgins to use reasonable care. The only evidence of Du Pont's and Higgins' claimed failure to use reasonable care that you may consider in connection with the liability of Du Pont and Scrufari to Mr. Clause is evidence relating to the claimed violation of Rule 23-9.7(e) by Du Pont and Higgins. Mr. Clause claims that the Rule was violated because he was required by Du Pont and Higgins to sit in the flat open bed of a pickup truck. Violation of this Rule by Du Pont or by Higgins would constitute some evidence of their respective failure to use reasonable care. Du Pont and Higgins deny that this Rule was violated or that they failed to use reasonable care.In deciding whether Du Pont, the land owner and Scrufari, the general contractor, are liable to the Plaintiff because of the claimed failure of Du Pont and Higgins to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule 23-9.7(e). If you find that there was a violation of Rule 23-9.7(e) and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing Mr. Clause's injuries, you will find for the Plaintiff against Defendant, Du Pont and against Defendant, Scrufari on this issue. If you find that neither Du Pont, nor Scrufari, nor Higgins violated Rule 23-9.7(e), or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing Mr. Clause's injuries, you will find for Du Pont and Scrufari on this |
| issue.2. . | issue.2. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering.3. . | Suffering.3. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (enjoyment of | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (enjoyment of |
| life)4. . | life)4. PJI 2:281. |
| Damages—Personal Injury—Permanence—Life Expectancy | Damages—Personal Injury—Permanence—Life Expectancy |
| Tables.5. . | Tables.5. PJI 2:283. |
| Damages—Personal Injury—Aggravation or Activation of Latent Disease or | Damages—Personal Injury—Aggravation or Activation of Latent Disease or |
| Condition.6. . | Condition.6. PJI 2:285. |
| Damages—Personal Injury—Expenses | Damages—Personal Injury—Expenses |
| Incurred.7. . | Incurred.7. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In | Damages—Personal Injury—Loss of Earnings—In |
| General.8. . | General.8. PJI 2:301. |
| Damages—Personal Injury—Itemized Verdict.2. Jury Instructions Proposed by DefendantThese instructions were requested by defendant Du Pont. Note that only the defendant requested an instruction on premises liability. Du Pont was the owner of the premises.(Defendant refers to the first 8 requests as “Request No. 1”)REQUEST NO. | Damages—Personal Injury—Itemized Verdict.2. Jury Instructions Proposed by DefendantThese instructions were requested by defendant Du Pont. Note that only the defendant requested an instruction on premises liability. Du Pont was the owner of the premises.(Defendant refers to the first 8 requests as “Request No. 1”)REQUEST NO. |
| 11. . Introduction2. . | 11. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:60. |
| Burden of Proof (Defendant adds “see Request No. | Burden of Proof (Defendant adds “see Request No. |
| 2”)5. . | 2”)5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| Exclude SympathyREQUEST NO. | Exclude SympathyREQUEST NO. |
| 29. . | 29. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different Issues (Defendant requests the following language:)To say that a party has the burden of proof on a particular issue means that, considering all the evidence in the case, the party's claim on that issue must be established by a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds. In order for a party to prevail on an issue on which he or she has the burden of proof, the evidence that supports his or her claim on that issue must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so evenly that you are unable to say that there is a preponderance on either side, you must decide the question against the party who has the burden of proof and in favor of the opposing party.In this case the plaintiff has asserted claims that the defendants Du Pont and Scrufari are liable for the alleged occurrence. Defendants Du Pont and Scrufari claim that they did not cause the alleged occurrence but that the plaintiff did, or third-party defendant Higgins did. Alternatively, Du Pont and Scrufari also say that even if you find that one or both of them caused the alleged occurrence, the plaintiff and Higgins also caused the alleged occurrence. The plaintiff has the burden of proving that Du Pont and Scrufari [illegible] are liable within the meaning of the instructions that will follow. DuPont and Scrufari have the burden of proving that the plaintiff was negligent and that Higgins was negligent and that their negligence was also a substantial factor in causing the occurrence.Finally, third-party defendant Higgins claims that it did not cause the alleged occurrence, but that the plaintiff did, or DuPont or Scrufari did. Higgins also says that even if you find that it caused the alleged occurrence, then the plaintiff. DuPont or Scrufari also caused the alleged occurrence. Higgins has the burden of proving that the plaintiff, DuPont or Scrufari was negligent and that their negligence was a substantial factor in causing the alleged occurrence.REQUEST NO. | General Instruction—Burden of Proof—When Burden Differs on Different Issues (Defendant requests the following language:)To say that a party has the burden of proof on a particular issue means that, considering all the evidence in the case, the party's claim on that issue must be established by a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds. In order for a party to prevail on an issue on which he or she has the burden of proof, the evidence that supports his or her claim on that issue must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so evenly that you are unable to say that there is a preponderance on either side, you must decide the question against the party who has the burden of proof and in favor of the opposing party.In this case the plaintiff has asserted claims that the defendants Du Pont and Scrufari are liable for the alleged occurrence. Defendants Du Pont and Scrufari claim that they did not cause the alleged occurrence but that the plaintiff did, or third-party defendant Higgins did. Alternatively, Du Pont and Scrufari also say that even if you find that one or both of them caused the alleged occurrence, the plaintiff and Higgins also caused the alleged occurrence. The plaintiff has the burden of proving that Du Pont and Scrufari [illegible] are liable within the meaning of the instructions that will follow. DuPont and Scrufari have the burden of proving that the plaintiff was negligent and that Higgins was negligent and that their negligence was also a substantial factor in causing the occurrence.Finally, third-party defendant Higgins claims that it did not cause the alleged occurrence, but that the plaintiff did, or DuPont or Scrufari did. Higgins also says that even if you find that it caused the alleged occurrence, then the plaintiff. DuPont or Scrufari also caused the alleged occurrence. Higgins has the burden of proving that the plaintiff, DuPont or Scrufari was negligent and that their negligence was a substantial factor in causing the alleged occurrence.REQUEST NO. |
| 310. . | 310. PJI 1:75. |
| General Instruction—Evidence—Failure to Produce Witness—In General. (Defendant requests the following:)Line 5: Insert PlaintiffsLine 6: Dr. Edward D. Simmons, a physician that treated Mr. ClauseLine 8: The nature, cause and extent of Mr. Clause's injuryLine 9: The Plaintiffs have offered no explanation for not calling Dr. SimmonsLine 13 to and including the word “my” in line 18: DeleteLine 19: Insert Dr. Edward D. SimmonsLine 20: Insert PlaintiffsLine 21: The nature, cause and extent of Mr. Clause's injuryLine 23: Insert PlaintiffsLine 26: Insert Plaintiffs11. REQUEST NO. 4 (Note: Page containing Request No. 4 in original document is illegible.)REQUEST NO. | General Instruction—Evidence—Failure to Produce Witness—In General. (Defendant requests the following:)Line 5: Insert PlaintiffsLine 6: Dr. Edward D. Simmons, a physician that treated Mr. ClauseLine 8: The nature, cause and extent of Mr. Clause's injuryLine 9: The Plaintiffs have offered no explanation for not calling Dr. SimmonsLine 13 to and including the word “my” in line 18: DeleteLine 19: Insert Dr. Edward D. SimmonsLine 20: Insert PlaintiffsLine 21: The nature, cause and extent of Mr. Clause's injuryLine 23: Insert PlaintiffsLine 26: Insert Plaintiffs11. REQUEST NO. 4 (Note: Page containing Request No. 4 in original document is illegible.)REQUEST NO. |
| 512. . | 512. PJI 1:90. |
| General Instruction—Expert Witness (Defendant specifies:)a. James J. White, M.D. (orthopedic surgeon); andb. Ronald Rieser (economist)c. Charles C. Palisano (safety)d. Richard B.T. Cowan, M.D.e. John ConiglioREQUEST NO. | General Instruction—Expert Witness (Defendant specifies:)a. James J. White, M.D. (orthopedic surgeon); andb. Ronald Rieser (economist)c. Charles C. Palisano (safety)d. Richard B.T. Cowan, M.D.e. John ConiglioREQUEST NO. |
| 613. . | 613. PJI 1:94. |
| General Instructions—Use of Pre-Trial Deposition Upon Trial (Defendant requests the following language be substituted in place of the pattern instruction:)You have heard lawyers read portions of documents referred to as examinations before trial. You may hear the lawyers refer to these documents as EBTs or as depositions.At some point before this trial began these witnesses, under oath, answered certain questions put to them by the lawyers. A stenographer recorded the questions and answers and transcribed them into a document called a transcript. The portions of the transcript of the examination before trial that you have heard are to be considered by you as if the witnesses were testifying from the witness stand.14. REQUEST NO. 7 (Note: Page containing Request No. 7 in original document is illegible.)REQUEST NO. | General Instructions—Use of Pre-Trial Deposition Upon Trial (Defendant requests the following language be substituted in place of the pattern instruction:)You have heard lawyers read portions of documents referred to as examinations before trial. You may hear the lawyers refer to these documents as EBTs or as depositions.At some point before this trial began these witnesses, under oath, answered certain questions put to them by the lawyers. A stenographer recorded the questions and answers and transcribed them into a document called a transcript. The portions of the transcript of the examination before trial that you have heard are to be considered by you as if the witnesses were testifying from the witness stand.14. REQUEST NO. 7 (Note: Page containing Request No. 7 in original document is illegible.)REQUEST NO. |
| 815. . | 815. PJI 2:91. |
| Liability for Condition or Use of Land—Possessors Liability—Unsafe Condition (Defendant requests the following language, which primarily inserts Defendant's name in the appropriate locations, and specifies that the condition alleged to have caused the injury was a depression in the roadway.)The owner of land has a duty to use reasonable care to keep the property in a reasonably safe condition.In order to recover from DuPont, plaintiff has the burden of proving: (1) that the premises were not reasonably safe; (2) that Du Pont was negligent in not keeping the premises in a reasonably safe condition; and (3) that Du Pont's negligence in allowing the unsafe condition to exist was a substantial factor in causing plaintiff's injury.You must first consider whether the premises were in a reasonably safe condition. Plaintiff claims that there was a depression of 4 to 6 to 8 inches in the surface of the roadway near the railroad crossing. Defendant denies that there was any such depression present. Defendant also claims that if such depression was there, its presence did not create an unsafe condition. You must decide whether the depression was present, and if it was, whether a reasonably prudent person would have anticipated that the condition it created was not reasonably safe for persons using the roadway at the point of the railroad crossing. If you decide that the depression was not present, or if it was, that it did not create an unsafe condition, you will find for defendant DuPont and proceed no further on this claim as to Du Pont. If you decide that there was depression as alleged by plaintiff, and that its presence created an unsafe condition, you must next consider whether Du Pont was negligent.Plaintiff must prove that Du Pont was negligent in failing to correct the condition if it was aware of it and had sufficient time to correct it, or provide reasonable safeguards or give an appropriate warning; or to use reasonable care to discover the condition and correct it, or to provide reasonable safeguards to prevent injury, or to give a reasonable warning. Negligence is the failure to use reasonable care. Reasonable care means that degree of care that a reasonable prudent owner of land would use under the same circumstances. Negligence includes both a foreseeable danger of injury and conduct which is unreasonable in proportion to the danger. In deciding whether defendant was negligent, you must weigh the likelihood and seriousness of the risk of injury against the burdens involved in maintaining the property in a safe condition.You will find that Du Pont was negligent if you decide either: (a) Du Pont knew about the condition long enough before the accident to have allowed Du Pont in the use of reasonable care to correct it, provide reasonable safeguards or give a reasonable warning; or (b) Du Pont did not know about the dangerous condition but, in the use of reasonable care, Du Pont should have known about it and either corrected it, provided reasonable safeguards or given a reasonable warning. If you find either that (a) Du Pont did not know about the condition and, by the use of reasonable care, Du Pont would not have been able to discover and correct it; or (b) Du Pont knew about the condition but provided reasonable safeguards or gave a reasonable warning, then you will find that Du Pont was not negligent.If you find that Du Pont was negligent, you must next consider whether that negligence was a substantial factor in causing plaintiff's injury. An act or failure to act is a substantial factor in causing an injury if a reasonable person would regard the act or failure to act as a cause of the injury. If you find that Du Pont's negligence was not a substantial factor in causing plaintiff's injury, you will find for Du Pont on this claim. If you find that Du Pont's negligence was a substantial factor in causing plaintiff's injury, you will proceed to consider whether plaintiff was also at fault.Author's Comment: | Liability for Condition or Use of Land—Possessors Liability—Unsafe Condition (Defendant requests the following language, which primarily inserts Defendant's name in the appropriate locations, and specifies that the condition alleged to have caused the injury was a depression in the roadway.)The owner of land has a duty to use reasonable care to keep the property in a reasonably safe condition.In order to recover from DuPont, plaintiff has the burden of proving: (1) that the premises were not reasonably safe; (2) that Du Pont was negligent in not keeping the premises in a reasonably safe condition; and (3) that Du Pont's negligence in allowing the unsafe condition to exist was a substantial factor in causing plaintiff's injury.You must first consider whether the premises were in a reasonably safe condition. Plaintiff claims that there was a depression of 4 to 6 to 8 inches in the surface of the roadway near the railroad crossing. Defendant denies that there was any such depression present. Defendant also claims that if such depression was there, its presence did not create an unsafe condition. You must decide whether the depression was present, and if it was, whether a reasonably prudent person would have anticipated that the condition it created was not reasonably safe for persons using the roadway at the point of the railroad crossing. If you decide that the depression was not present, or if it was, that it did not create an unsafe condition, you will find for defendant DuPont and proceed no further on this claim as to Du Pont. If you decide that there was depression as alleged by plaintiff, and that its presence created an unsafe condition, you must next consider whether Du Pont was negligent.Plaintiff must prove that Du Pont was negligent in failing to correct the condition if it was aware of it and had sufficient time to correct it, or provide reasonable safeguards or give an appropriate warning; or to use reasonable care to discover the condition and correct it, or to provide reasonable safeguards to prevent injury, or to give a reasonable warning. Negligence is the failure to use reasonable care. Reasonable care means that degree of care that a reasonable prudent owner of land would use under the same circumstances. Negligence includes both a foreseeable danger of injury and conduct which is unreasonable in proportion to the danger. In deciding whether defendant was negligent, you must weigh the likelihood and seriousness of the risk of injury against the burdens involved in maintaining the property in a safe condition.You will find that Du Pont was negligent if you decide either: (a) Du Pont knew about the condition long enough before the accident to have allowed Du Pont in the use of reasonable care to correct it, provide reasonable safeguards or give a reasonable warning; or (b) Du Pont did not know about the dangerous condition but, in the use of reasonable care, Du Pont should have known about it and either corrected it, provided reasonable safeguards or given a reasonable warning. If you find either that (a) Du Pont did not know about the condition and, by the use of reasonable care, Du Pont would not have been able to discover and correct it; or (b) Du Pont knew about the condition but provided reasonable safeguards or gave a reasonable warning, then you will find that Du Pont was not negligent.If you find that Du Pont was negligent, you must next consider whether that negligence was a substantial factor in causing plaintiff's injury. An act or failure to act is a substantial factor in causing an injury if a reasonable person would regard the act or failure to act as a cause of the injury. If you find that Du Pont's negligence was not a substantial factor in causing plaintiff's injury, you will find for Du Pont on this claim. If you find that Du Pont's negligence was a substantial factor in causing plaintiff's injury, you will proceed to consider whether plaintiff was also at fault.Author's Comment: |
| PJI 2:91 |
| illustrates how a pattern charge may provide a roadmap or checklist for trial preparation.REQUEST NO. 9 (The following three instructions comprise “Request No. | illustrates how a pattern charge may provide a roadmap or checklist for trial preparation.REQUEST NO. 9 (The following three instructions comprise “Request No. |
| 9”)16. . | 9”)16. PJI 2:10. |
| Common Law Standard Care—Negligence | Common Law Standard Care—Negligence |
| Defined—Generally17. . | Defined—Generally17. PJI 2:12. |
| Common Law Standard of Care—Foreseeability | Common Law Standard of Care—Foreseeability |
| Generally18. . | Generally18. PJI 2:16. |
| Common Law Standard of Care—Customary Business PracticesREQUEST NO. 1019. No corresponding pattern instruction:The mere happening of an occurrence such as that alleged by plaintiff is not proof of negligence. Plaintiff may not recover on the ground of an alleged defect in Du Pont's property merely because of the happening of the alleged occurrence.REQUEST NO. 11 (The following two instructions comprise “Request No. | Common Law Standard of Care—Customary Business PracticesREQUEST NO. 1019. No corresponding pattern instruction:The mere happening of an occurrence such as that alleged by plaintiff is not proof of negligence. Plaintiff may not recover on the ground of an alleged defect in Du Pont's property merely because of the happening of the alleged occurrence.REQUEST NO. 11 (The following two instructions comprise “Request No. |
| 11”)20. . | 11”)20. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General21. . | General21. PJI 2:71. |
| Proximate Cause—Concurrent Causes.REQUEST NO. | Proximate Cause—Concurrent Causes.REQUEST NO. |
| 1222. . | 1222. PJI 2:72. |
| Proximate Cause—Intervening Causes (Defendant requests the following language, which differs from the pattern instruction:)The defendants claim that they are not responsible for the plaintiff's injuries because the injuries were caused by events which happened after the alleged occurrence. If you find that plaintiff's injuries were caused by events which happened after the alleged occurrence then the defendants are not responsible for the plaintiff's injuries and plaintiff may not recover.Author's Comment: The defendant's proposed charge simplifies the notion of “intervening cause” but entirely omits the key concept that the defendant may still be liable if the defendant should have foreseen the type of act by a third party which was alleged to relieve the defendant of responsibility for the plaintiff's injury. The law pertaining to intervening causes is discussed in the Comment, 1A | Proximate Cause—Intervening Causes (Defendant requests the following language, which differs from the pattern instruction:)The defendants claim that they are not responsible for the plaintiff's injuries because the injuries were caused by events which happened after the alleged occurrence. If you find that plaintiff's injuries were caused by events which happened after the alleged occurrence then the defendants are not responsible for the plaintiff's injuries and plaintiff may not recover.Author's Comment: The defendant's proposed charge simplifies the notion of “intervening cause” but entirely omits the key concept that the defendant may still be liable if the defendant should have foreseen the type of act by a third party which was alleged to relieve the defendant of responsibility for the plaintiff's injury. The law pertaining to intervening causes is discussed in the Comment, 1A |
| , | NY PJI3d 2:72, |
| at 438 to 450 (2018).REQUEST NO. | at 438 to 450 (2018).REQUEST NO. |
| 1323. . | 1323. PJI 2:235. |
| Vicarious Responsibility—Employer—Employee—Scope of Employment (Defendant requests only “First paragraph and last sentence of last paragraph.”)REQUEST NO. | Vicarious Responsibility—Employer—Employee—Scope of Employment (Defendant requests only “First paragraph and last sentence of last paragraph.”)REQUEST NO. |
| 1424. . | 1424. PJI 2:216A. |
| Injured Employee—Violation of Industrial Rule—Vicarious Liability—Non-delegable Duty of Owner/Contractor (Defendant requests the following language:)Plaintiff claims that defendants. DuPont an owner of the site, and Scrufari, the general contractor, are liable for his injuries under | Injured Employee—Violation of Industrial Rule—Vicarious Liability—Non-delegable Duty of Owner/Contractor (Defendant requests the following language:)Plaintiff claims that defendants. DuPont an owner of the site, and Scrufari, the general contractor, are liable for his injuries under |
| . | |
| Section 241(6) | Section 241(6) |
| of the New York State Labor Law. Section 241(6) |
| requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein. . .” The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims | requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein. . .” The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims |
| 12 NYCRR 23-9.7 |
| was violated. That Rule reads as follows: [Read Regulation]Under Labor Law § 241(6), the owner of an area where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of a general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the work in that area. Likewise, under Labor Law § 241(6), the general contractor is liable for injury to a worker in that area caused by the failure of its subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the working that area. The owner is liable for an injury due to the failure of a general contractor or subcontractor to use reasonable care even though the owner did not control or supervise the area or the work being done there and did not or could not know of any danger to plaintiff.In this case, plaintiff claims that Du Pont, the owner, is liable to him for his injury because of the failure of Scrufari and Higgins to use reasonable care. Plaintiff also claims that Scrufari, the general contractor, is liable to him for his injury because of the failure of Scrufari and Higgins to use reasonable care. The only evidence of Scrufari and Higgins' claimed failure to use reasonable care that you may consider in connection with the liability of Du Pont to plaintiff, is evidence relating to the claimed violation of Rule 12 NYCRR by either Scrufari and/or Higgins. Plaintiff claims that the Rule was violated because the Higgins' pickup truck was not equipped with a properly constructed seat or a platform. Violation of this rule by either Scrufari or Higgins would constitute some evidence of their failure to use reasonable care. Du Pont. Scrufari and Higgins deny that the Rule was violated or that either Scrufari or Higgins failed to use reasonable care. Du Pont. Scrufari and Higgins contend that the bed of the pickup truck constitutes a platform within the meaning of 12 NYCRR 23-9.7 and, therefore, that regulation was not violated by Higgins practice of transporting its employees in the back of its pickup truck.In deciding whether Du Pont, the owner, is liable to plaintiff because of the claimed failure of Scrufari and Higgins to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule 23-9.7. If you find that there was a violation of Rule 23-9.7 and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendants Du Pont and Scrufari on this issue. If you find that Rule 23-9.7 was not violated, or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for the defendants on this issue.REQUEST NO. | was violated. That Rule reads as follows: [Read Regulation]Under Labor Law § 241(6), the owner of an area where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of a general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the work in that area. Likewise, under Labor Law § 241(6), the general contractor is liable for injury to a worker in that area caused by the failure of its subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the working that area. The owner is liable for an injury due to the failure of a general contractor or subcontractor to use reasonable care even though the owner did not control or supervise the area or the work being done there and did not or could not know of any danger to plaintiff.In this case, plaintiff claims that Du Pont, the owner, is liable to him for his injury because of the failure of Scrufari and Higgins to use reasonable care. Plaintiff also claims that Scrufari, the general contractor, is liable to him for his injury because of the failure of Scrufari and Higgins to use reasonable care. The only evidence of Scrufari and Higgins' claimed failure to use reasonable care that you may consider in connection with the liability of Du Pont to plaintiff, is evidence relating to the claimed violation of Rule 12 NYCRR by either Scrufari and/or Higgins. Plaintiff claims that the Rule was violated because the Higgins' pickup truck was not equipped with a properly constructed seat or a platform. Violation of this rule by either Scrufari or Higgins would constitute some evidence of their failure to use reasonable care. Du Pont. Scrufari and Higgins deny that the Rule was violated or that either Scrufari or Higgins failed to use reasonable care. Du Pont. Scrufari and Higgins contend that the bed of the pickup truck constitutes a platform within the meaning of 12 NYCRR 23-9.7 and, therefore, that regulation was not violated by Higgins practice of transporting its employees in the back of its pickup truck.In deciding whether Du Pont, the owner, is liable to plaintiff because of the claimed failure of Scrufari and Higgins to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule 23-9.7. If you find that there was a violation of Rule 23-9.7 and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendants Du Pont and Scrufari on this issue. If you find that Rule 23-9.7 was not violated, or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for the defendants on this issue.REQUEST NO. |
| 1525. . | 1525. PJI 2:36. |
| Comparative Negligence: Defined (Defendant requests the following language, which primarily inserts the charge of a Labor Law violation separately from the negligence charge:)If you find that any defendant was negligent or that any defendant is liable for plaintiff's injuries under Section 241(6) of the New York State Labor Law and that defendants' negligence on such Labor Law violation contributed to causing plaintiff's injuries you must next consider whether plaintiff was also negligent and whether plaintiff's conduct contributed to causing his own injuries.The burden is on the defendants to prove that plaintiff was negligent and that his negligent [sic] contributed to his injuries. If you find that plaintiff was negligent and that his negligence contributed to causing his injuries, you must then apportion the fault between plaintiff and the defendants.Weighing all the facts and circumstances, you must consider the total negligence, that is, the negligence of the plaintiff and each of the defendants which contributed to causing plaintiff's injuries and determine what percentage of fault is chargeable to each. In your verdict, you will state the percentages you find. The total of those percentages must equal one hundred percent.For example, if you should find that the defendants and plaintiff were equally negligent you would report that each was 25% responsible. If you should find that one party was more negligent than the other in causing plaintiff's injuries, you would assign a higher percentage to that party and a lower percentage to the others, with the total of the percentages equaling one hundred percent.REQUEST NO. | Comparative Negligence: Defined (Defendant requests the following language, which primarily inserts the charge of a Labor Law violation separately from the negligence charge:)If you find that any defendant was negligent or that any defendant is liable for plaintiff's injuries under Section 241(6) of the New York State Labor Law and that defendants' negligence on such Labor Law violation contributed to causing plaintiff's injuries you must next consider whether plaintiff was also negligent and whether plaintiff's conduct contributed to causing his own injuries.The burden is on the defendants to prove that plaintiff was negligent and that his negligent [sic] contributed to his injuries. If you find that plaintiff was negligent and that his negligence contributed to causing his injuries, you must then apportion the fault between plaintiff and the defendants.Weighing all the facts and circumstances, you must consider the total negligence, that is, the negligence of the plaintiff and each of the defendants which contributed to causing plaintiff's injuries and determine what percentage of fault is chargeable to each. In your verdict, you will state the percentages you find. The total of those percentages must equal one hundred percent.For example, if you should find that the defendants and plaintiff were equally negligent you would report that each was 25% responsible. If you should find that one party was more negligent than the other in causing plaintiff's injuries, you would assign a higher percentage to that party and a lower percentage to the others, with the total of the percentages equaling one hundred percent.REQUEST NO. |
| 1626. . | 1626. PJI 2:275. |
| Liability Over-Apportionment of Fault. (Defendant requests that the first paragraph (probably | Liability Over-Apportionment of Fault. (Defendant requests that the first paragraph (probably |
| , | PJI 2:275C, not |
| 2:275) be modified to read as follows:)If you determine that more than one defendant is liable, you must weigh the relative degree of fault of each defendant and determine as between defendants what parts of the total verdict should be paid by each.REQUEST NO. | 2:275) be modified to read as follows:)If you determine that more than one defendant is liable, you must weigh the relative degree of fault of each defendant and determine as between defendants what parts of the total verdict should be paid by each.REQUEST NO. |
| 1727. . | 1727. PJI 2:277. |
| Damages—GeneralREQUEST NO. | Damages—GeneralREQUEST NO. |
| 1828. . | 1828. PJI 2:280.2. |
| Income TaxesREQUEST NO. 1929. No corresponding pattern instruction:In determining plaintiff's work life expectancy, you must consider the fact that the plaintiff may retire, be laid off or become disabled from working before reaching his full working life expectancy. See PJI 1992 Cumulative Supplement. Vol. I. pp. 643 to 644.Author's Comment: Currently, | Income TaxesREQUEST NO. 1929. No corresponding pattern instruction:In determining plaintiff's work life expectancy, you must consider the fact that the plaintiff may retire, be laid off or become disabled from working before reaching his full working life expectancy. See PJI 1992 Cumulative Supplement. Vol. I. pp. 643 to 644.Author's Comment: Currently, |
| PJI 2:290 |
| addresses loss of earnings as an element of damages.REQUEST NO. 2030. No corresponding pattern instruction:Plaintiff has a duty to mitigate loss of earnings by reasonably seeking vocational rehabilitation and endeavoring to obtain and/or maintain alternative employment. PJI 1992 Cumulative Supplement. Vol. I, pp. 576 and 618.Author's Comment: For a discussion of the law pertaining to recovery of lost earnings as an element of damages generally, see 1B | addresses loss of earnings as an element of damages.REQUEST NO. 2030. No corresponding pattern instruction:Plaintiff has a duty to mitigate loss of earnings by reasonably seeking vocational rehabilitation and endeavoring to obtain and/or maintain alternative employment. PJI 1992 Cumulative Supplement. Vol. I, pp. 576 and 618.Author's Comment: For a discussion of the law pertaining to recovery of lost earnings as an element of damages generally, see 1B |
| , | NY PJI3d 2:290, |
| at 943 to 955 (2018), stating that “[p]laintiff has a duty to mitigate loss of earnings by reasonably seeking vocational rehabilitation. . .. However, there is no requirement that the issue of mitigation be presented as a separate item on the special verdict,. . ..” (citations omitted).Note: The page following Request No. 20 in the original document is blank, and may contain a further request.3. Supplemental Instructions Proposed by | at 943 to 955 (2018), stating that “[p]laintiff has a duty to mitigate loss of earnings by reasonably seeking vocational rehabilitation. . .. However, there is no requirement that the issue of mitigation be presented as a separate item on the special verdict,. . ..” (citations omitted).Note: The page following Request No. 20 in the original document is blank, and may contain a further request.3. Supplemental Instructions Proposed by |
| Defendant1. . | Defendant1. PJI 2:26. |
| Statutory Standard of Care—Vehicle and Traffic Law Violation (Defendant does not specify this pattern instruction by number, but requests the following:)That the Court take judicial notice of the Vehicle & Traffic Law Sections 1100 and | Statutory Standard of Care—Vehicle and Traffic Law Violation (Defendant does not specify this pattern instruction by number, but requests the following:)That the Court take judicial notice of the Vehicle & Traffic Law Sections 1100 and |
| ,1 | 1222,1 |
| and pursuant to | and pursuant to |
| , | CPLR 4110-b, |
| instruct the jury on the law as follows:SUPPLEMENTAL REQUEST NO. 1(To be read to jury without footnotes.)In determining whether any defendant was negligent or that any defendant is liable for plaintiff's injury, you may consider New York's Vehicle and Traffic Law. Specifically, the laws pertaining to the rules of the road and persons riding on trucks. The Vehicle and Traffic Law establishes rules of the road which must be obeyed by operators of motor vehicles, including trucks.You may consider that under New York's Vehicle and Traffic Law, a driver is permitted to operate a pickup truck on a public highway, private roads open to the public and parking lots2 with adult persons riding in the bed of the pickup | instruct the jury on the law as follows:SUPPLEMENTAL REQUEST NO. 1(To be read to jury without footnotes.)In determining whether any defendant was negligent or that any defendant is liable for plaintiff's injury, you may consider New York's Vehicle and Traffic Law. Specifically, the laws pertaining to the rules of the road and persons riding on trucks. The Vehicle and Traffic Law establishes rules of the road which must be obeyed by operators of motor vehicles, including trucks.You may consider that under New York's Vehicle and Traffic Law, a driver is permitted to operate a pickup truck on a public highway, private roads open to the public and parking lots2 with adult persons riding in the bed of the pickup |
| truck.32. . | truck.32. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to Work (Defendant requests the following language:)That the Court give the following charge regarding plaintiffs' Labor Law § 200 claim against DuPont in the event that DuPont's motion for a directed verdict dismissing that claim is denied:REQUEST NO. | Injured Employee—Statutory Negligence—Safe Place to Work (Defendant requests the following language:)That the Court give the following charge regarding plaintiffs' Labor Law § 200 claim against DuPont in the event that DuPont's motion for a directed verdict dismissing that claim is denied:REQUEST NO. |
| 8A. | 8APJI 2:216. |
| (Injured Employee—Statutory Negligence—Safe Place to Work)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”An owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner, as well as the ways of getting to and from the workplaces, reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.Plaintiff claims that the workplace was unsafe in that defendant [claims] a four inch to six inch to eight inch depression existed near the railroad crossing where plaintiff claims that his injuries occurred and the condition was allowed to continue because of DuPont's negligence. DuPont denies this claim. In deciding this issue, you will first consider whether the workplace was unsafe and, if so, whether the unsafe condition resulted from DuPont's failure to use reasonable care to correct the condition after DuPont or its employees knew or in the use of reasonable care should have known of the condition.(Note: In previous paragraph, handwritten notation in the original document says “changed to refer to instruction to be seated in pick up” in the vicinity of the words “six inch.”)If you decide that the workplace was not unsafe or that an unsafe condition did not result from any failure of DuPont to use reasonable care in making or keeping it safe, then you will find for DuPont on this issue.If you decide that the workplace was unsafe and that the unsafe condition resulted from the failure of DuPont to exercise reasonable care in making it or keeping it safe, and such failure was a substantial factor in causing plaintiff's injury, you will find for plaintiff on this issueC. Case Documents Available on Westlaw1.On appeal: Clause v. E.I. Du Pont De Nemours & Co., 284 A.D.2d 966, 726 N.Y.S.2d 317 (4th Dep't 2001)Verdict, Agreement and Settlement (Third Party Action Stipulation of Discontinuance), 2000 WL 34609977Jury Instruction (Plaintiffs' Request to Charge), 1999 WL 33997549Jury Instruction (Defendant's Request for Charge after Trial), 1999 WL 33997550Jury Instruction (Supplemental Request for Charge after Trial), 1999 WL 33997551Jury Instruction (Verdict Sheet), 1999 WL 34591126Jury Instruction (Special Verdict Sheet), 1999 WL 34591127Verdict, Agreement and Settlement (Verdict Sheet), 1999 WL 33997546, | (Injured Employee—Statutory Negligence—Safe Place to Work)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”An owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner, as well as the ways of getting to and from the workplaces, reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.Plaintiff claims that the workplace was unsafe in that defendant [claims] a four inch to six inch to eight inch depression existed near the railroad crossing where plaintiff claims that his injuries occurred and the condition was allowed to continue because of DuPont's negligence. DuPont denies this claim. In deciding this issue, you will first consider whether the workplace was unsafe and, if so, whether the unsafe condition resulted from DuPont's failure to use reasonable care to correct the condition after DuPont or its employees knew or in the use of reasonable care should have known of the condition.(Note: In previous paragraph, handwritten notation in the original document says “changed to refer to instruction to be seated in pick up” in the vicinity of the words “six inch.”)If you decide that the workplace was not unsafe or that an unsafe condition did not result from any failure of DuPont to use reasonable care in making or keeping it safe, then you will find for DuPont on this issue.If you decide that the workplace was unsafe and that the unsafe condition resulted from the failure of DuPont to exercise reasonable care in making it or keeping it safe, and such failure was a substantial factor in causing plaintiff's injury, you will find for plaintiff on this issueC. Case Documents Available on Westlaw1.On appeal: Clause v. E.I. Du Pont De Nemours & Co., 284 A.D.2d 966, 726 N.Y.S.2d 317 (4th Dep't 2001)Verdict, Agreement and Settlement (Third Party Action Stipulation of Discontinuance), 2000 WL 34609977Jury Instruction (Plaintiffs' Request to Charge), 1999 WL 33997549Jury Instruction (Defendant's Request for Charge after Trial), 1999 WL 33997550Jury Instruction (Supplemental Request for Charge after Trial), 1999 WL 33997551Jury Instruction (Verdict Sheet), 1999 WL 34591126Jury Instruction (Special Verdict Sheet), 1999 WL 34591127Verdict, Agreement and Settlement (Verdict Sheet), 1999 WL 33997546, |
| 1999 |
| WL | WL |
| 33997547, 1999 WL |
| 33997548Trial Motion, Memorandum and Affidavit (Affirmation), 1993 WL 13159257Trial Pleading (Third-Party Answer), 1993 WL 13159260Trial Pleading (Third Party Complaint), 1993 WL 13159259Trial Pleading (Answer), 1992 WL 12157114Trial Pleading (Answer With Affirmative Defenses), 1992 WL 12157115Trial Pleading (Amended Complaint), 1992 WL 12157113, 1992 WL 12157116Trial Pleading (Complaint), | 33997548Trial Motion, Memorandum and Affidavit (Affirmation), 1993 WL 13159257Trial Pleading (Third-Party Answer), 1993 WL 13159260Trial Pleading (Third Party Complaint), 1993 WL 13159259Trial Pleading (Answer), 1992 WL 12157114Trial Pleading (Answer With Affirmative Defenses), 1992 WL 12157115Trial Pleading (Amended Complaint), 1992 WL 12157113, 1992 WL 12157116Trial Pleading (Complaint), |
| 2.Sample | 1992 WL 121571122.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| ,; | 4:194,; |
| 4:209, 4:212, 7:209, 7:209A§ 6:12 Premises liability/Trip and fall; personal injuries/Two plaintiffs, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Personal injuriesCase Name: Teresa Griffin and Michael Griffin, Plaintiffs-Appellants, v. High Fives Restaurant, Inc. and Donald E. Axin, DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Elizabeth EmersonDocket Number: 27562/93Verdict Date: January 11, 1999Outcome: Verdict for Defendant, affirmed on appealBrief Summary of Facts: Plaintiff was walking in a restaurant operated by Defendant High Fives when she fell because she failed to notice a single-step riser situated in the lobby of the restaurant. The restaurant was located in the basement of a building owned by Defendant Donald Axin. The riser, which separated the restaurant lobby from the bar area, was located approximately 10 feet from a set of double doors that led to a stairway leading to the ground level of the building. Jury found for Defendants.On appeal, the appellate court held that the trial court did not err in refusing to instruct the jury with regard to New York State Building Code § 765.4(a)(10) | 4:209, 4:212, 7:209, 7:209A§ 6:12 Premises liability/Trip and fall; personal injuries/Two plaintiffs, two defendantsA. BackgroundType of Case: Premises liabilityType of Injury: Personal injuriesCase Name: Teresa Griffin and Michael Griffin, Plaintiffs-Appellants, v. High Fives Restaurant, Inc. and Donald E. Axin, DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Elizabeth EmersonDocket Number: 27562/93Verdict Date: January 11, 1999Outcome: Verdict for Defendant, affirmed on appealBrief Summary of Facts: Plaintiff was walking in a restaurant operated by Defendant High Fives when she fell because she failed to notice a single-step riser situated in the lobby of the restaurant. The restaurant was located in the basement of a building owned by Defendant Donald Axin. The riser, which separated the restaurant lobby from the bar area, was located approximately 10 feet from a set of double doors that led to a stairway leading to the ground level of the building. Jury found for Defendants.On appeal, the appellate court held that the trial court did not err in refusing to instruct the jury with regard to New York State Building Code § 765.4(a)(10) |
| ([a][10]). | (9 NYCRR 765.4[a][10]). |
| Despite the testimony of the plaintiffs' expert to the contrary, the record established that the provision, which explicitly governs exit stairways, does not apply to the single-step riser at issue.B. Jury Instructions Proposed by | Despite the testimony of the plaintiffs' expert to the contrary, the record established that the provision, which explicitly governs exit stairways, does not apply to the single-step riser at issue.B. Jury Instructions Proposed by |
| Plaintiff1. . | Plaintiff1. PJI 1:22. |
| Falsus in | Falsus in |
| Uno2. . | Uno2. PJI 1:60. |
| Burden of | Burden of |
| Proof3. . | Proof3. PJI 1:91. |
| Interested | Interested |
| Witness4. . | Witness4. PJI 1:92. |
| Interested Witness—Employee of | Interested Witness—Employee of |
| Party5. . | Party5. PJI 2:10. |
| Negligence | Negligence |
| Defined6. . | Defined6. PJI 2:90. |
| Possessor's Liability—Standard of Care | Possessor's Liability—Standard of Care |
| [former]7. . | [former]7. PJI 2:91. |
| Possessor's Liability—Unsafe Condition (Plaintiff adds:)The pattern charge must be amended to exclude the references on page 411 proving notice. Defendants created and maintained the single step riser. As the commentary to that PJI section notes at page 428:Notice is not required if the condition was created by the owner or possessor. Kruz v. New York City Transit Authority, 136 A.D.2d 196, 526 N.Y.S.2d 827; See | Possessor's Liability—Unsafe Condition (Plaintiff adds:)The pattern charge must be amended to exclude the references on page 411 proving notice. Defendants created and maintained the single step riser. As the commentary to that PJI section notes at page 428:Notice is not required if the condition was created by the owner or possessor. Kruz v. New York City Transit Authority, 136 A.D.2d 196, 526 N.Y.S.2d 827; See |
| , | PJI 2:91, |
| and | and |
| the |
| jury should be instructed that if they find that the defendant created the condition they need not consider the issue of notice, Roberts v. Arrow Boat Club, Inc., 46 A.D.2d 815, 361 N.Y.S.2d 213.Author's Comment: Consistent with Plaintiff's proposed modification, the Committee states, “Where the defendant created the unsafe condition, the question of defendant's knowledge or notice is ordinarily irrelevant and should be omitted from the charge.” 1A | jury should be instructed that if they find that the defendant created the condition they need not consider the issue of notice, Roberts v. Arrow Boat Club, Inc., 46 A.D.2d 815, 361 N.Y.S.2d 213.Author's Comment: Consistent with Plaintiff's proposed modification, the Committee states, “Where the defendant created the unsafe condition, the question of defendant's knowledge or notice is ordinarily irrelevant and should be omitted from the charge.” 1A |
| , | NY PJI3d 2:91, |
| at 652 to 653 | at 652 to 653 |
| (2018).8. . | (2018).8. PJI 2:29. |
| Statutory Standard of Care (Plaintiff adds:)Plaintiff claims that the defendants failed to comply with New York State Building Code § 9 N.Y.C.R.R. 765.4, (current section) (1966 version | Statutory Standard of Care (Plaintiff adds:)Plaintiff claims that the defendants failed to comply with New York State Building Code § 9 N.Y.C.R.R. 765.4, (current section) (1966 version |
| ). | 9 N.Y.C.R.R. 821.4(a)(9)). |
| Plaintiff is entitled to an instruction to the effect that the violation is some evidence of negligence. Major v. Waverly & Ogden, 7 N.Y.2d 332, 197 N.Y.S.2d 165 | Plaintiff is entitled to an instruction to the effect that the violation is some evidence of negligence. Major v. Waverly & Ogden, 7 N.Y.2d 332, 197 N.Y.S.2d 165 |
| (1960).9. . | (1960).9. PJI 2:116. |
| Lessor's Liability (Plaintiff adds:)Because the lessor in the case at bar retained the right to re-enter and repair, the lessor's responsibility to injured third parties survives his lease. See Commentary to | Lessor's Liability (Plaintiff adds:)Because the lessor in the case at bar retained the right to re-enter and repair, the lessor's responsibility to injured third parties survives his lease. See Commentary to |
| PJI 2:116 |
| and cases cited therein.Author's Comment: Currently, as to a lessor's responsibilities to injured third persons, see the commentary at 1A NY PJI3d 2:116, at 744 to 747 | and cases cited therein.Author's Comment: Currently, as to a lessor's responsibilities to injured third persons, see the commentary at 1A NY PJI3d 2:116, at 744 to 747 |
| (2018).10. . | (2018).10. PJI 2:106. |
| Lessor's Covenant to | Lessor's Covenant to |
| Repair11. . | Repair11. PJI 2:70. |
| Proximate CauseC. Case Documents Available on Westlaw1.On appeal: Griffin v. High Fives Restaurant, Inc., 271 A.D.2d 646, 706 N.Y.S.2d 718 (2d Dep't 2000)Appellate Brief (Reply Brief for Plaintiffs-Appellants Teresa | Proximate CauseC. Case Documents Available on Westlaw1.On appeal: Griffin v. High Fives Restaurant, Inc., 271 A.D.2d 646, 706 N.Y.S.2d 718 (2d Dep't 2000)Appellate Brief (Reply Brief for Plaintiffs-Appellants Teresa |
| , | Griffin and Michael Griffin), |
| 1999 WL 33979332Appellate Brief (Brief of Defendant-Respondent, High Fives Restaurant, Inc.), 1999 WL 33980297Appellate Brief (Brief for Defendant-Respondent Donald E. Axin), 1999 WL 33980296Appellate Brief (Brief for Plaintiffs-Appellants Teresa Griffin and Michael Griffin), 1999 WL 33979331Trial Pleading (Answer), 1994 WL 16477945Trial Pleading (Verified Complaint), 1993 WL 13549520Jury Instruction (Plaintiffs' Proposed Jury Charges), 1999 WL 34678636Expert Trial Transcript, | 1999 WL 33979332Appellate Brief (Brief of Defendant-Respondent, High Fives Restaurant, Inc.), 1999 WL 33980297Appellate Brief (Brief for Defendant-Respondent Donald E. Axin), 1999 WL 33980296Appellate Brief (Brief for Plaintiffs-Appellants Teresa Griffin and Michael Griffin), 1999 WL 33979331Trial Pleading (Answer), 1994 WL 16477945Trial Pleading (Verified Complaint), 1993 WL 13549520Jury Instruction (Plaintiffs' Proposed Jury Charges), 1999 WL 34678636Expert Trial Transcript, |
| 2.Sample | 1999 WL 346593672.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersAdjoining Landowners 7Landlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:13 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:13 Premises |
| liability/Flash fire; burns/Two plaintiffs, one defendant; one third-party plaintiff, two third-party defendantsA. BackgroundType of Case: Premises liability; Labor Law violationsType of Injury: Second- and third-degree burns on over 60% of the body from the waist upCase Name: Daniel H. Neumire, Sr., and Ann Neumire, Plaintiffs, v. Kraft Foods, Inc., f/k/a Kraft General Foods, Inc., Defendant; Kraft Foods, Inc., Third-Party Plaintiff, v. R & L Perry Construction, Inc. and Sear-Brown Group, Inc., Third-Party Defendants.Court: Supreme Court of New York, Steuben CountyJudge: Peter BradstreetDocket Number: 74141Verdict Date: April 2, 1999Outcome: $10,252,000 for Daniel N. v. R&L Perry Construction, reduced to $2,563,000 for 75% comparative negligence of Plaintiff; however, Kraft, which owned the premises and defended a premises liability action, was not found negligent.Brief Summary of Facts: Accident occurred at Defendant Kraft's Polly-O Dairy facility, located in Campbell, New York. Plaintiff was a 53-year-old superintendent for Third-party Defendant R&L Perry Construction. Evidence indicated that R&L Perry had installed a standard septic system for Kraft, designed by Sear Brown, pursuant to a contract with Kraft. Six months later, it was discovered that there was a water leak outside, causing water to leak into the lift station, in violation of Department of Environmental Conservation (DEC) regulations. Kraft contended that R&L Perry was responsible for making repairs pursuant to warranty, and it was agreed that R&L Perry would do so. On the date of accident, R&L Perry brought in a track-hoe to the facility, and used it to dig outside the lift station, in preparation to plug the area where the leak occurred. R&L Perry workers were unable to get gravel out of the lift station, and testimony indicated that Plaintiff decided on his own to go into the lift station to make the repair from the inside. No notice was given to Kraft or to Plaintiff's superiors at R&L Perry. Evidence indicated that after Plaintiff had been in the lift station for approximately 30 to 60 seconds, a flash fire occurred, severely burning Plaintiff on over 60% of his body.Plaintiff claimed that the fire resulted from the presence of petroleum product, or gasoline, in the ground water, and contended that if the septic system had been properly installed, this would not have occurred. Testimony indicated that R&L Perry had certified to the DEC in May 1992 that the area was in compliance with its regulations. Plaintiff claimed that Perry should have properly supervised the construction of the lift station to be sure that there was no leak present. Kraft argued that the fire resulted from the presence of methane, a by-product of sewer decomposition. Kraft further argued that Plaintiff should not have gone into the lift station without following proper confined space entry procedures, which required that a gas monitoring device be used to check for oxygen and flammable substances; and required the use of a buddy system while purging or opening the vessel by blowing air into the area, thereby forcing gasses out, and then monitoring the space before sending workers in. Kraft contended that it did not supervise or direct any of the operations being performed in conjunction with the project. R&L Perry argued that no one knew that Plaintiff was going into the area, and that he did so on his own, and further contended that it had no notice of the presence of methane gas.Kraft contended that R&L Perry, Plaintiff's employer, had a duty to provide him with appropriate safety equipment under N.Y. Labor Law § 241(6), and argued that Perry had a contractual agreement to indemnify Kraft as the owners of the property. The jury found that Kraft was not negligent.B. Jury Instructions Proposed by Defendant/Third-Party | liability/Flash fire; burns/Two plaintiffs, one defendant; one third-party plaintiff, two third-party defendantsA. BackgroundType of Case: Premises liability; Labor Law violationsType of Injury: Second- and third-degree burns on over 60% of the body from the waist upCase Name: Daniel H. Neumire, Sr., and Ann Neumire, Plaintiffs, v. Kraft Foods, Inc., f/k/a Kraft General Foods, Inc., Defendant; Kraft Foods, Inc., Third-Party Plaintiff, v. R & L Perry Construction, Inc. and Sear-Brown Group, Inc., Third-Party Defendants.Court: Supreme Court of New York, Steuben CountyJudge: Peter BradstreetDocket Number: 74141Verdict Date: April 2, 1999Outcome: $10,252,000 for Daniel N. v. R&L Perry Construction, reduced to $2,563,000 for 75% comparative negligence of Plaintiff; however, Kraft, which owned the premises and defended a premises liability action, was not found negligent.Brief Summary of Facts: Accident occurred at Defendant Kraft's Polly-O Dairy facility, located in Campbell, New York. Plaintiff was a 53-year-old superintendent for Third-party Defendant R&L Perry Construction. Evidence indicated that R&L Perry had installed a standard septic system for Kraft, designed by Sear Brown, pursuant to a contract with Kraft. Six months later, it was discovered that there was a water leak outside, causing water to leak into the lift station, in violation of Department of Environmental Conservation (DEC) regulations. Kraft contended that R&L Perry was responsible for making repairs pursuant to warranty, and it was agreed that R&L Perry would do so. On the date of accident, R&L Perry brought in a track-hoe to the facility, and used it to dig outside the lift station, in preparation to plug the area where the leak occurred. R&L Perry workers were unable to get gravel out of the lift station, and testimony indicated that Plaintiff decided on his own to go into the lift station to make the repair from the inside. No notice was given to Kraft or to Plaintiff's superiors at R&L Perry. Evidence indicated that after Plaintiff had been in the lift station for approximately 30 to 60 seconds, a flash fire occurred, severely burning Plaintiff on over 60% of his body.Plaintiff claimed that the fire resulted from the presence of petroleum product, or gasoline, in the ground water, and contended that if the septic system had been properly installed, this would not have occurred. Testimony indicated that R&L Perry had certified to the DEC in May 1992 that the area was in compliance with its regulations. Plaintiff claimed that Perry should have properly supervised the construction of the lift station to be sure that there was no leak present. Kraft argued that the fire resulted from the presence of methane, a by-product of sewer decomposition. Kraft further argued that Plaintiff should not have gone into the lift station without following proper confined space entry procedures, which required that a gas monitoring device be used to check for oxygen and flammable substances; and required the use of a buddy system while purging or opening the vessel by blowing air into the area, thereby forcing gasses out, and then monitoring the space before sending workers in. Kraft contended that it did not supervise or direct any of the operations being performed in conjunction with the project. R&L Perry argued that no one knew that Plaintiff was going into the area, and that he did so on his own, and further contended that it had no notice of the presence of methane gas.Kraft contended that R&L Perry, Plaintiff's employer, had a duty to provide him with appropriate safety equipment under N.Y. Labor Law § 241(6), and argued that Perry had a contractual agreement to indemnify Kraft as the owners of the property. The jury found that Kraft was not negligent.B. Jury Instructions Proposed by Defendant/Third-Party |
| Plaintiff1. . Introduction2. . | Plaintiff1. PJI 1:20. Introduction2. PJI 1:25. |
| Consider Only Testimony and Exhibits (Kraft omits phrase “of the witnesses” after | Consider Only Testimony and Exhibits (Kraft omits phrase “of the witnesses” after |
| “testimony”)3. . | “testimony”)3. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings4. . | Rulings4. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence5. . | Evidence5. PJI 1:70. |
| Circumstantial | Circumstantial |
| Evidence6. . | Evidence6. PJI 1:91. |
| Interested Witnesses—Generally (Kraft specifies parties in first sentence:)The plaintiffs and the respective representatives of the defendant and the third-party defendants testified before you. As parties to the action, all are interested witnesses.7. One Trial—Liability and Damages (Kraft here refers to PJI 4:20 from the First Edition of PJI (1968) and | Interested Witnesses—Generally (Kraft specifies parties in first sentence:)The plaintiffs and the respective representatives of the defendant and the third-party defendants testified before you. As parties to the action, all are interested witnesses.7. One Trial—Liability and Damages (Kraft here refers to PJI 4:20 from the First Edition of PJI (1968) and |
| :)Author's | N.Y. CPLR 4011:)Author's |
| Comment: Currently, see | Comment: Currently, see |
| , | PJI 2:277, |
| charging, “My charge to you on the law of damages must not be taken as a suggestion that you should find for the plaintiff. . ..”During the course of this trial you have been presented with evidence regarding both liability and damages. The fact that you have been presented evidence regarding damages must not be taken as an intimation that you should decide for plaintiff. As you will see from the questionnaire I will give you, before you ever even consider whether plaintiff is entitled to any damages, you must first decide on the evidence presented whether plaintiff is entitled to recovery from defendant. If you decide that plaintiff is not entitled to recover, your verdict will be for defendant and you need go no further. Only if you decide that plaintiff is entitled to recover will you consider the measure of damages.You will decide the factual issues presented pursuant to the instructions which I will now give you. This procedure of hearing arguments and evidence on both liability and damages during the same phase of the trial is being followed by direction of the Court, and no inferences should be drawn for or against any party.8. Corporation Acts Through Its Officers, Employees and Authorized Representatives (Kraft here refers Laufer v. Ostrow, 55 N.Y.2d 305, 313, 434 N.E.2d 692, 696, 449 N.Y.S.2d 456, 460 (1982):)Kraft and third-party defendants R&L Perry Construction, Inc. (“R&L Perry”) and Sear-Brown Group, Inc. (“Sear-Brown”), are corporations and as such can act only through their respective officers and employees or other authorized representatives. Any act of an officer, employee or other representative within the scope of his or her authority or employment is in law the act of such corporation. However, only acts of authorized representatives will count as acts by the corporation.You may therefore consider the statements made by an individual witness, whether made here during testimony or in documents or pre-trial statements received in evidence, or other actions about which evidence has been received, so long as these statements or actions occurred during the course of that person's employment and concerned a matter within the scope of his or her employment.Whether large or small, rich or poor, solvent or insolvent, a corporation is under the law entitled to the same consideration that you would accord any other person, firm or individual in deciding the issues in this case solely and strictly upon the evidence and no other | charging, “My charge to you on the law of damages must not be taken as a suggestion that you should find for the plaintiff. . ..”During the course of this trial you have been presented with evidence regarding both liability and damages. The fact that you have been presented evidence regarding damages must not be taken as an intimation that you should decide for plaintiff. As you will see from the questionnaire I will give you, before you ever even consider whether plaintiff is entitled to any damages, you must first decide on the evidence presented whether plaintiff is entitled to recovery from defendant. If you decide that plaintiff is not entitled to recover, your verdict will be for defendant and you need go no further. Only if you decide that plaintiff is entitled to recover will you consider the measure of damages.You will decide the factual issues presented pursuant to the instructions which I will now give you. This procedure of hearing arguments and evidence on both liability and damages during the same phase of the trial is being followed by direction of the Court, and no inferences should be drawn for or against any party.8. Corporation Acts Through Its Officers, Employees and Authorized Representatives (Kraft here refers Laufer v. Ostrow, 55 N.Y.2d 305, 313, 434 N.E.2d 692, 696, 449 N.Y.S.2d 456, 460 (1982):)Kraft and third-party defendants R&L Perry Construction, Inc. (“R&L Perry”) and Sear-Brown Group, Inc. (“Sear-Brown”), are corporations and as such can act only through their respective officers and employees or other authorized representatives. Any act of an officer, employee or other representative within the scope of his or her authority or employment is in law the act of such corporation. However, only acts of authorized representatives will count as acts by the corporation.You may therefore consider the statements made by an individual witness, whether made here during testimony or in documents or pre-trial statements received in evidence, or other actions about which evidence has been received, so long as these statements or actions occurred during the course of that person's employment and concerned a matter within the scope of his or her employment.Whether large or small, rich or poor, solvent or insolvent, a corporation is under the law entitled to the same consideration that you would accord any other person, firm or individual in deciding the issues in this case solely and strictly upon the evidence and no other |
| consideration.9. . | consideration.9. PJI 1:97. |
| Special Verdict (Kraft refers to this as | Special Verdict (Kraft refers to this as |
| .)10. . | PJI 1:26B.)10. PJI 1:27. |
| Exclude | Exclude |
| Sympathy11. . | Sympathy11. PJI 1:90. |
| Expert | Expert |
| Witnesses12. . | Witnesses12. PJI 1:23. |
| Burden of Proof (As two sentences, Kraft proposes the following, picking up the pattern instruction with “That means that it must be. . ..:”)The burden of proof on the issues of whether Kraft was negligent or whether Kraft violated the Labor Law of the State of New York rests on plaintiffs. The burden of proof on the issues of whether R&L Perry and/or Sear-Brown each was negligent rests on Kraft. The burden of proof on the issue of whether R&L Perry violated the New York Labor Law rests on Kraft.(Kraft omits, after “quality,” “of the evidence, that is, its convincing | Burden of Proof (As two sentences, Kraft proposes the following, picking up the pattern instruction with “That means that it must be. . ..:”)The burden of proof on the issues of whether Kraft was negligent or whether Kraft violated the Labor Law of the State of New York rests on plaintiffs. The burden of proof on the issues of whether R&L Perry and/or Sear-Brown each was negligent rests on Kraft. The burden of proof on the issue of whether R&L Perry violated the New York Labor Law rests on Kraft.(Kraft omits, after “quality,” “of the evidence, that is, its convincing |
| quality. . ..”)13. . | quality. . ..”)13. PJI 1:60. |
| Burden of Proof—When Burden Differs on Different | Burden of Proof—When Burden Differs on Different |
| Issues14. . | Issues14. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally15. . | Defined—Generally15. PJI 2:12. |
| Common Law Standard of | Common Law Standard of |
| Care—Foreseeability—Generally16. . | Care—Foreseeability—Generally16. PJI 2:90. |
| Landowner's Liability For Condition of Premises—Standard of Care (After the first two pattern paragraphs, Kraft's version is considerably altered from pattern instruction:)You must first consider whether the premises were reasonably safe. Plaintiffs claim that the premises were not in a reasonably safe condition because there was gasoline in the lift station and that caused the fire. Defendant contends that the premises were reasonably safe because there was no gasoline in the lift station and because the fire was caused by methane gas which is a natural by-product of sewage. If you decide that the premises were reasonably safe because there was no gasoline in the lift station and because the fire was caused by methane gas which is a natural byproduct of sewage, you will find for defendant on this claim. If you decide that the premises were not reasonably safe, you will proceed to consider whether defendant was negligent in permitting the unsafe condition to exist.(Kraft includes pattern instruction paragraph on negligence. Then, regarding reasonableness:)The reasonableness of defendant's conduct also depends upon whether defendant should reasonably have foreseen the presence of plaintiff or someone like plaintiff entering the lift station. In deciding whether plaintiff's presence should have been reasonably foreseen by defendant, you must consider the time, place, and circumstances of plaintiff's entering into the lift station.(Kraft follows pattern instruction inserting the facts of this lawsuit:)In order to find that defendant's conduct was negligent, you must find that plaintiff Daniel Neumire's presence inside the lift station was foreseeable and either that (a) defendant knew of the presence of gasoline inside the lift station long enough before plaintiff's injury to have permitted defendant in the use of reasonable care to have it corrected, or to take other suitable precautions, or to give adequate warning, and did not do so; or (b) defendant did not know of the presence of gasoline inside the lift station, but in the use of reasonable care should have known of it and corrected it or taken other suitable precautions, or given adequate warning. If you find that plaintiff Daniel Neumire's presence inside the lift station was not foreseeable or that defendant did not know of the presence of gasoline inside the lift station and that by the use of reasonable care defendant would not have been able to discover and correct it, or if you find that defendant knew of the presence of gasoline inside the lift station but took suitable precautions or gave plaintiff an adequate warning, you will find that defendant was not negligent.(Kraft follows pattern instruction on substantial factor, omitting “If you find that CD's negligence was a substantial factor in causing AB's injury, you will proceed to consider. . ..” Kraft tailors paragraph on foreseeability for this lawsuit:)In deciding whether defendant was negligent, you must consider all the evidence, including the foreseeability of plaintiff's entry inside the lift station, whether defendant knew of the dangerous condition in the lift station long enough before plaintiff's injury to have permitted defendant in the use of reasonable care to have it corrected, or take other suitable precautions, or to give adequate warning; and if defendant did not know of the condition, whether in the use of reasonable care defendant should have known of it and corrected it or taken other suitable precautions or given adequate warning.If you find that the presence of someone like plaintiff in the lift station was reasonably foreseeable, and that defendant knew of the presence of gasoline inside of the lift station long enough before plaintiff's injury to have permitted defendant in the use of reasonable care to correct the condition, take other suitable precautions, or give adequate warning and that defendant failed to do so, or if you find that defendant did not know of the presence of gasoline inside the lift station but that in the use of reasonable care it should have known of it and corrected it, taken other suitable precautions, or given adequate warning, you will find that defendant was negligent.If you find that the presence of someone like plaintiff inside the lift station was not reasonably foreseeable, or if you find that defendant did not know of the presence of gasoline and that by the use of reasonable care defendant would not have been able to discover and correct it or take other suitable precautions, or if you find that defendant gave adequate warning to plaintiff of the dangerous condition, you will find that defendant was not | Landowner's Liability For Condition of Premises—Standard of Care (After the first two pattern paragraphs, Kraft's version is considerably altered from pattern instruction:)You must first consider whether the premises were reasonably safe. Plaintiffs claim that the premises were not in a reasonably safe condition because there was gasoline in the lift station and that caused the fire. Defendant contends that the premises were reasonably safe because there was no gasoline in the lift station and because the fire was caused by methane gas which is a natural by-product of sewage. If you decide that the premises were reasonably safe because there was no gasoline in the lift station and because the fire was caused by methane gas which is a natural byproduct of sewage, you will find for defendant on this claim. If you decide that the premises were not reasonably safe, you will proceed to consider whether defendant was negligent in permitting the unsafe condition to exist.(Kraft includes pattern instruction paragraph on negligence. Then, regarding reasonableness:)The reasonableness of defendant's conduct also depends upon whether defendant should reasonably have foreseen the presence of plaintiff or someone like plaintiff entering the lift station. In deciding whether plaintiff's presence should have been reasonably foreseen by defendant, you must consider the time, place, and circumstances of plaintiff's entering into the lift station.(Kraft follows pattern instruction inserting the facts of this lawsuit:)In order to find that defendant's conduct was negligent, you must find that plaintiff Daniel Neumire's presence inside the lift station was foreseeable and either that (a) defendant knew of the presence of gasoline inside the lift station long enough before plaintiff's injury to have permitted defendant in the use of reasonable care to have it corrected, or to take other suitable precautions, or to give adequate warning, and did not do so; or (b) defendant did not know of the presence of gasoline inside the lift station, but in the use of reasonable care should have known of it and corrected it or taken other suitable precautions, or given adequate warning. If you find that plaintiff Daniel Neumire's presence inside the lift station was not foreseeable or that defendant did not know of the presence of gasoline inside the lift station and that by the use of reasonable care defendant would not have been able to discover and correct it, or if you find that defendant knew of the presence of gasoline inside the lift station but took suitable precautions or gave plaintiff an adequate warning, you will find that defendant was not negligent.(Kraft follows pattern instruction on substantial factor, omitting “If you find that CD's negligence was a substantial factor in causing AB's injury, you will proceed to consider. . ..” Kraft tailors paragraph on foreseeability for this lawsuit:)In deciding whether defendant was negligent, you must consider all the evidence, including the foreseeability of plaintiff's entry inside the lift station, whether defendant knew of the dangerous condition in the lift station long enough before plaintiff's injury to have permitted defendant in the use of reasonable care to have it corrected, or take other suitable precautions, or to give adequate warning; and if defendant did not know of the condition, whether in the use of reasonable care defendant should have known of it and corrected it or taken other suitable precautions or given adequate warning.If you find that the presence of someone like plaintiff in the lift station was reasonably foreseeable, and that defendant knew of the presence of gasoline inside of the lift station long enough before plaintiff's injury to have permitted defendant in the use of reasonable care to correct the condition, take other suitable precautions, or give adequate warning and that defendant failed to do so, or if you find that defendant did not know of the presence of gasoline inside the lift station but that in the use of reasonable care it should have known of it and corrected it, taken other suitable precautions, or given adequate warning, you will find that defendant was negligent.If you find that the presence of someone like plaintiff inside the lift station was not reasonably foreseeable, or if you find that defendant did not know of the presence of gasoline and that by the use of reasonable care defendant would not have been able to discover and correct it or take other suitable precautions, or if you find that defendant gave adequate warning to plaintiff of the dangerous condition, you will find that defendant was not |
| negligent.17. . | negligent.17. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General18. . | General18. PJI 2:71. |
| Proximate Cause—Concurrent | Proximate Cause—Concurrent |
| Causes19. . | Causes19. PJI 2:55. |
| (Implied) Assumption of Risk (Kraft's proposal closely follows pattern instruction, tailored to this lawsuit:)The law provides that where the defendant owes a duty of reasonable care to the plaintiff, but the plaintiff voluntarily engages in an activity involving a risk of harm and the plaintiff knows and fully understands, or should have known and fully understood, the risk of harm, the plaintiff's damages must be reduced by the extent to which those damages were caused by the plaintiff's own conduct.Kraft claims that the plaintiff Daniel Neumire was injured when he entered the lift station without notice to Kraft and without taking proper precautions, and therefore he assumed the risk of the injury. It is Kraft's burden to prove that the plaintiff Daniel Neumire assumed the risk of injury.(Third paragraph is identical to pattern instruction. Kraft cites a number of cases in addition to | (Implied) Assumption of Risk (Kraft's proposal closely follows pattern instruction, tailored to this lawsuit:)The law provides that where the defendant owes a duty of reasonable care to the plaintiff, but the plaintiff voluntarily engages in an activity involving a risk of harm and the plaintiff knows and fully understands, or should have known and fully understood, the risk of harm, the plaintiff's damages must be reduced by the extent to which those damages were caused by the plaintiff's own conduct.Kraft claims that the plaintiff Daniel Neumire was injured when he entered the lift station without notice to Kraft and without taking proper precautions, and therefore he assumed the risk of the injury. It is Kraft's burden to prove that the plaintiff Daniel Neumire assumed the risk of injury.(Third paragraph is identical to pattern instruction. Kraft cites a number of cases in addition to |
| :)Arbegast | PJI 2:55:)Arbegast |
| v Board of Education, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365; Maddox v New York, 66 N.Y.2d 270, 496 N.Y.2d 726, 487 N.E.2d 553; Steunenberg v Hicksville Fire Dist., 136 A.D.2d 623, 523 N.Y.S.2d 594, | v Board of Education, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365; Maddox v New York, 66 N.Y.2d 270, 496 N.Y.2d 726, 487 N.E.2d 553; Steunenberg v Hicksville Fire Dist., 136 A.D.2d 623, 523 N.Y.S.2d 594, |
| ; | app den 73 N.Y.2d 704; |
| see | see |
| ; | Morgan v State, 90 N.Y.2d 271, 662 N.Y.2d 421, 685 N.E.2d 202; |
| Resnick v Gribetz, 66 N.Y.2d 729, 496 N.Y.S.2d 998, 498 N.E.2d 908; | Resnick v Gribetz, 66 N.Y.2d 729, 496 N.Y.S.2d 998, 498 N.E.2d 908; |
| ; | Grisoff v Nicolletta, 107 A.D.2d 1047, 486 N.Y.S.2d 579; |
| see also | see also |
| ; | Lamey v Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490; |
| O'Keeffe v State, 140 A.D.2d 998; 530 N.Y.S.2d | O'Keeffe v State, 140 A.D.2d 998; 530 N.Y.S.2d |
| 911.20. . | 911.20. PJI 2:36. |
| Comparative Negligence (Kraft's proposal follows the pattern, adding the following example and a final paragraph:)For example, if you should find that the defendant and the plaintiff were equally negligent you would report that each was 50% responsible; If you should find that one party was more negligent than the other in causing the accident, you would assign a higher percentage to that party and a lower percentage to the other, with the total of the percentage, equaling one hundred percent.You must now decide from the evidence before you the total amount of damages suffered by the plaintiffs in dollars in accordance with the rules that I am about to explain to you. In arriving at the total, you must not consider the percentages of negligence but must simply report the total amount of the plaintiffs' damages on the verdict sheet.Author's Comment: The proposed additions are apparently drawn from | Comparative Negligence (Kraft's proposal follows the pattern, adding the following example and a final paragraph:)For example, if you should find that the defendant and the plaintiff were equally negligent you would report that each was 50% responsible; If you should find that one party was more negligent than the other in causing the accident, you would assign a higher percentage to that party and a lower percentage to the other, with the total of the percentage, equaling one hundred percent.You must now decide from the evidence before you the total amount of damages suffered by the plaintiffs in dollars in accordance with the rules that I am about to explain to you. In arriving at the total, you must not consider the percentages of negligence but must simply report the total amount of the plaintiffs' damages on the verdict sheet.Author's Comment: The proposed additions are apparently drawn from |
| PJI 2:36.1 |
| and | and |
| .21. . Damages22. . | PJI 2:36.2.21. PJI 2:277. Damages22. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering23. . | Suffering23. PJI 2:280.2. |
| Damages—Consideration of Income | Damages—Consideration of Income |
| Taxes24. . | Taxes24. PJI 2:216A. |
| Violation of N.Y. Labor Law § 241(6) (Kraft omits the reading of the Labor Law, but includes:)The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims that the following rules promulgated by the Commissioner of Labor were violated: ————————————————. (Blank space is as presented by Kraft.)(As third and fourth paragraphs, Kraft specifies the following. Note that the blank spaces following the word “Rule” are as presented by Kraft:)In this case, plaintiff claims that Kraft is liable to him for his injuries because of the failure to use reasonable care. The only evidence that you may consider in connection with the liability of Kraft to plaintiffs on plaintiffs' Labor Law | Violation of N.Y. Labor Law § 241(6) (Kraft omits the reading of the Labor Law, but includes:)The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims that the following rules promulgated by the Commissioner of Labor were violated: ————————————————. (Blank space is as presented by Kraft.)(As third and fourth paragraphs, Kraft specifies the following. Note that the blank spaces following the word “Rule” are as presented by Kraft:)In this case, plaintiff claims that Kraft is liable to him for his injuries because of the failure to use reasonable care. The only evidence that you may consider in connection with the liability of Kraft to plaintiffs on plaintiffs' Labor Law |
| Section 241(6) |
| claim, is evidence relating to the claimed violation of Rule(s) —————. Plaintiffs claim that the Rule was violated. Violation of this rule(s) would constitute some evidence of the failure to use reasonable care. Kraft denies that it violated this rule(s), or that it failed to use reasonable care. Kraft contends it had no notice that the plaintiff Daniel Neumire would enter into the lift station, and that it was not foreseeable to Kraft that plaintiff Daniel Neumire would do so.In deciding whether Kraft is liable to plaintiffs because of the claimed failure to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule ———. If you find that there was a violation of Rule ——— and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendant/third-party plaintiff Kraft on this issue. If you find that there was no violation of Rule ———, or that even though there was a violation, it was not foreseeable and did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for Kraft on this issue.(Kraft cites its contract with R&L Perry (“Kraft-R&L Perry Contract (Defendant's Exhibit B)”) as its authority for the final proposal in this | claim, is evidence relating to the claimed violation of Rule(s) —————. Plaintiffs claim that the Rule was violated. Violation of this rule(s) would constitute some evidence of the failure to use reasonable care. Kraft denies that it violated this rule(s), or that it failed to use reasonable care. Kraft contends it had no notice that the plaintiff Daniel Neumire would enter into the lift station, and that it was not foreseeable to Kraft that plaintiff Daniel Neumire would do so.In deciding whether Kraft is liable to plaintiffs because of the claimed failure to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule ———. If you find that there was a violation of Rule ——— and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendant/third-party plaintiff Kraft on this issue. If you find that there was no violation of Rule ———, or that even though there was a violation, it was not foreseeable and did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for Kraft on this issue.(Kraft cites its contract with R&L Perry (“Kraft-R&L Perry Contract (Defendant's Exhibit B)”) as its authority for the final proposal in this |
| instruction:)25. . | instruction:)25. PJI 2:275. |
| Comparative Fault—Apportionment of Fault Between Defendants (Kraft tailors instruction to this lawsuit. Proposal omits sentence beginning with “Once you have considered all the facts and circumstances. . ..” In the final paragraph, Kraft omits “The total of these percentages must add up to 100 per cent.”)If you find that Kraft was negligent, you must then determine if third-party defendant R&L Perry and/or third-party defendant Sear-Brown, are at fault. If you find that Kraft violated the New York Labor Law, you must then determine if third-party defendant R&L Perry is at fault. You must then decide what part of the fault each bears.In making that decision on the negligence claim, you will weigh the degree of the fault of the defendant Kraft, and the third-party defendants R&L Perry and Sear-Brown. In making that decision on the Labor Law | Comparative Fault—Apportionment of Fault Between Defendants (Kraft tailors instruction to this lawsuit. Proposal omits sentence beginning with “Once you have considered all the facts and circumstances. . ..” In the final paragraph, Kraft omits “The total of these percentages must add up to 100 per cent.”)If you find that Kraft was negligent, you must then determine if third-party defendant R&L Perry and/or third-party defendant Sear-Brown, are at fault. If you find that Kraft violated the New York Labor Law, you must then determine if third-party defendant R&L Perry is at fault. You must then decide what part of the fault each bears.In making that decision on the negligence claim, you will weigh the degree of the fault of the defendant Kraft, and the third-party defendants R&L Perry and Sear-Brown. In making that decision on the Labor Law |
| Section 241(6) |
| claim, you will weigh the degree of the fault of defendant Kraft and third-party defendant R&L Perry.On the verdict sheet you will state the percentage of fault of each defendant and third-party defendant.Author's Comment: The Comment to | claim, you will weigh the degree of the fault of defendant Kraft and third-party defendant R&L Perry.On the verdict sheet you will state the percentage of fault of each defendant and third-party defendant.Author's Comment: The Comment to |
| , | PJI 2:275, |
| at 1B NY PJI3d 2:275, at 796 to 845 (2018), comprehensively discusses the law pertaining to apportionment of fault between defendants and includes special verdict forms.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 1999 WL 33494519On appeal: Neumire v. Kraft Foods, Inc., 291 A.D.2d 784, 737 N.Y.S.2d 457 (4th Dep't 2002) (affirming verdict)Neumire v. Kraft Foods, Inc., 98 N.Y.2d 613, 779 N.E.2d 186 (Table), 749 N.Y.S.2d 475 (2002) (denying motions)Neumire v. Kraft Foods, Inc., 742 N.Y.S.2d 180 (Table, Text in WESTLAW), Unreported Disposition, 2002 WL 856645 (2002) (motion and cross motion for reargument or, in the alternative, leave to appeal to Court of Appeals denied)Neumire v. Kraft Foods, Inc., 291 A.D.2d 783, 737 N.Y.S.2d 898 (4th Dep't 2002) (ordering appeal and cross appeal dismissed without costs)Neumire v. Kraft Foods, Inc., 233 A.D.2d 227, 650 N.Y.S.2d 8 (1st Dep't 1996) (affirming change of venue)Trial Motion, Memorandum and Affidavit (Attorneys' Affirmations), | at 1B NY PJI3d 2:275, at 796 to 845 (2018), comprehensively discusses the law pertaining to apportionment of fault between defendants and includes special verdict forms.C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 1999 WL 33494519On appeal: Neumire v. Kraft Foods, Inc., 291 A.D.2d 784, 737 N.Y.S.2d 457 (4th Dep't 2002) (affirming verdict)Neumire v. Kraft Foods, Inc., 98 N.Y.2d 613, 779 N.E.2d 186 (Table), 749 N.Y.S.2d 475 (2002) (denying motions)Neumire v. Kraft Foods, Inc., 742 N.Y.S.2d 180 (Table, Text in WESTLAW), Unreported Disposition, 2002 WL 856645 (2002) (motion and cross motion for reargument or, in the alternative, leave to appeal to Court of Appeals denied)Neumire v. Kraft Foods, Inc., 291 A.D.2d 783, 737 N.Y.S.2d 898 (4th Dep't 2002) (ordering appeal and cross appeal dismissed without costs)Neumire v. Kraft Foods, Inc., 233 A.D.2d 227, 650 N.Y.S.2d 8 (1st Dep't 1996) (affirming change of venue)Trial Motion, Memorandum and Affidavit (Attorneys' Affirmations), |
| 1999 |
| WL | WL |
| 33985506, 1999 WL |
| 33985503Trial Motion, Memorandum and Affidavit (Responding Affirmation), 1999 WL 33985505Trial Motion, Memorandum and Affidavit (Affidavit of Patricia A. Hulley, Esq.), 1999 WL 33985504Trial Pleading (Supplemental Response to Plaintiffs and Third Party Defendants' Demands for Expert Witness Disclosure), 1998 WL 34366882Trial Pleading (First Amended Answer of R. & L. Perry Construction, Inc.), 1997 WL 33828443Trial Pleading (Third-Party Answer), 1996 WL 33686017Trial Pleading (Third Party Complaint), 1996 WL 33686016Trial Pleading (Answer of Defendant | 33985503Trial Motion, Memorandum and Affidavit (Responding Affirmation), 1999 WL 33985505Trial Motion, Memorandum and Affidavit (Affidavit of Patricia A. Hulley, Esq.), 1999 WL 33985504Trial Pleading (Supplemental Response to Plaintiffs and Third Party Defendants' Demands for Expert Witness Disclosure), 1998 WL 34366882Trial Pleading (First Amended Answer of R. & L. Perry Construction, Inc.), 1997 WL 33828443Trial Pleading (Third-Party Answer), 1996 WL 33686017Trial Pleading (Third Party Complaint), 1996 WL 33686016Trial Pleading (Answer of Defendant |
| , | Kraft Foods, Inc.), |
| 1995 WL 17818818Trial Pleading (Complaint), 1995 WL 17220556Jury Instruction (Proposed Jury Instructions of R. & L. Perry Construction, Inc.), 1999 WL 33985218Jury Instruction (Requests to Charge by Defendant/Third-Party Plaintiff | 1995 WL 17818818Trial Pleading (Complaint), 1995 WL 17220556Jury Instruction (Proposed Jury Instructions of R. & L. Perry Construction, Inc.), 1999 WL 33985218Jury Instruction (Requests to Charge by Defendant/Third-Party Plaintiff |
| , | Kraft Foods, Inc.), |
| 1999 WL 33985219Jury Instruction (Proposed Jury Charges), 1999 WL 33985217Expert Report and Affidavit, 1997 WL 33828464Expert Trial Transcripts, | 1999 WL 33985219Jury Instruction (Proposed Jury Charges), 1999 WL 33985217Expert Report and Affidavit, 1997 WL 33828464Expert Trial Transcripts, |
| 1999 |
| WL | WL |
| 33985602, 1995 WL |
| 17225888, | 17225888, |
| , , | |
| 1995 WL | 1995 WL |
| 17225889, 1995 WL 17225890, 1995 WL |
| 17225891, | 17225891, |
| 2.Sample | 1995 WL 172258922.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases:“negligen! & premises “real estate” “real property” 2:90 2:91 & co(supreme)”D. Research References1.Key |
| Numbers | NumbersLandlord and Tenant |
| 162 to | 162 to |
| 170 | 170Municipal Corporations 854 |
| to | to |
| 857Negligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:170 to |
| , , , , § 6:14 Premises | 4:194, 4:209, 4:212, 7:209, 7:209A§ 6:14 Premises |
| liability/stairway of restaurant/trip and fall/one plaintiff, one defendantA. BackgroundType of Case: Premises Liability/trip and fallType of Injury: Fractures of ankle, hand and footCase Name: Susan Fisher, plaintiff, v. Caliente Cab Third Avenue, LLC, defendantCourt: Supreme Court, New York CountyJudge: Paul G. Feinman, J.S.C.Docket Number: 102492/2007Verdict Date: August 2008Outcome: Defense verdictBrief Summary of Facts: Plaintiff, 61, a hospital's volunteer worker, tripped while descending an interior stairway of the Caliente Cab Co. restaurant in Manhattan, sustaining injuries of an ankle, a hand and a foot. She sued the restaurant's operator, Caliente Cab Third Avenue, LLC, alleging that it was negligent in its design and maintenance of the stairs. She further alleged that the defendant's negligence created a dangerous condition. She claimed that the stairway comprised several levels of stairs and an L-shaped middle section that ended with two access steps that led to the middle level of the restaurant. She contended that she tripped after unexpectedly encountering the access steps. She claimed that the area was not sufficiently lighted, that the stairs were not marked to indicate the presence of the access steps, that the stairway was not properly designed or maintained, and that the stairway was not bounded by handrails.Defense counsel contended that the stairway was properly designed, lighted and maintained. Defense counsel also claimed that the plaintiff was not watching her steps, and he suggested that her balance and vision could have been impaired by a course of chemotherapy that she was undergoing and/or her use of prescription medication that included a sedative, Ambien, and an anti-depressant, Zoloft.Fischer fell, and her right ankle and hip struck the second access step. Her head struck a nearby barstool. She sustained a bimalleolar fracture—a fracture of both sides of the ankle's malleolus, which is the ankle's bony protuberance. The non-displaced fracture affected her right ankle. She also sustained a minimally displaced fracture of the distal region of her right leg's fibula, which forms an upper portion of the ankle; a transverse fracture of the distal region of her right leg's fibula; a comminuted fracture of the base of her right foot's fifth metatarsal; and an injury of her right, dominant, hand. She underwent closed reduction of her fractures and physical therapy that continued until September 2006. During her rehabilitation, she required the use of a wheelchair and a Cam walker.The plaintiff sought recovery of a total of about $10,000 for her past medical and out-of-pocket expenses, reimbursement of the cost of a planned spa-resort trip that was canceled because of her injuries, $100,000 for her past pain and suffering, and $200,000 for her future pain and suffering.B. Jury Instructions Given by the | liability/stairway of restaurant/trip and fall/one plaintiff, one defendantA. BackgroundType of Case: Premises Liability/trip and fallType of Injury: Fractures of ankle, hand and footCase Name: Susan Fisher, plaintiff, v. Caliente Cab Third Avenue, LLC, defendantCourt: Supreme Court, New York CountyJudge: Paul G. Feinman, J.S.C.Docket Number: 102492/2007Verdict Date: August 2008Outcome: Defense verdictBrief Summary of Facts: Plaintiff, 61, a hospital's volunteer worker, tripped while descending an interior stairway of the Caliente Cab Co. restaurant in Manhattan, sustaining injuries of an ankle, a hand and a foot. She sued the restaurant's operator, Caliente Cab Third Avenue, LLC, alleging that it was negligent in its design and maintenance of the stairs. She further alleged that the defendant's negligence created a dangerous condition. She claimed that the stairway comprised several levels of stairs and an L-shaped middle section that ended with two access steps that led to the middle level of the restaurant. She contended that she tripped after unexpectedly encountering the access steps. She claimed that the area was not sufficiently lighted, that the stairs were not marked to indicate the presence of the access steps, that the stairway was not properly designed or maintained, and that the stairway was not bounded by handrails.Defense counsel contended that the stairway was properly designed, lighted and maintained. Defense counsel also claimed that the plaintiff was not watching her steps, and he suggested that her balance and vision could have been impaired by a course of chemotherapy that she was undergoing and/or her use of prescription medication that included a sedative, Ambien, and an anti-depressant, Zoloft.Fischer fell, and her right ankle and hip struck the second access step. Her head struck a nearby barstool. She sustained a bimalleolar fracture—a fracture of both sides of the ankle's malleolus, which is the ankle's bony protuberance. The non-displaced fracture affected her right ankle. She also sustained a minimally displaced fracture of the distal region of her right leg's fibula, which forms an upper portion of the ankle; a transverse fracture of the distal region of her right leg's fibula; a comminuted fracture of the base of her right foot's fifth metatarsal; and an injury of her right, dominant, hand. She underwent closed reduction of her fractures and physical therapy that continued until September 2006. During her rehabilitation, she required the use of a wheelchair and a Cam walker.The plaintiff sought recovery of a total of about $10,000 for her past medical and out-of-pocket expenses, reimbursement of the cost of a planned spa-resort trip that was canceled because of her injuries, $100,000 for her past pain and suffering, and $200,000 for her future pain and suffering.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review of Basic | Review of Basic |
| Principles3. . | Principles3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:91. |
| Interested | Interested |
| Witness5. . | Witness5. PJI 1:92. |
| Interested Witness—Employee of | Interested Witness—Employee of |
| Party6. . | Party6. PJI 1:90. |
| Expert | Expert |
| Witness7. . | Witness7. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different Issues (modified by adding the following):In this case the plaintiff has the burden of proving that the defendant was negligent. Plaintiff also has the burden of proving that any such negligence by the defendant was a substantial factor in causing her injuries.Defendant, in turn, maintains that it was not negligent. Defendant also disputes the nature and extent of plaintiff Susan Fischer's injuries. In addition, the defendant claims that the plaintiff Susan Fischer was herself negligent, and that her own negligence was a substantial factor in causing Ms. Fischer's injuries. The defendant has the burden of proving that the plaintiff Susan Fischer was negligent. The defendant is claiming that the plaintiff's negligence was a substantial factor in causing her own injuries. The defendant has the burden of proving that the plaintiff Susan Fischer's negligence was a substantial factor in causing her own | General Instruction—Burden of Proof—When Burden Differs on Different Issues (modified by adding the following):In this case the plaintiff has the burden of proving that the defendant was negligent. Plaintiff also has the burden of proving that any such negligence by the defendant was a substantial factor in causing her injuries.Defendant, in turn, maintains that it was not negligent. Defendant also disputes the nature and extent of plaintiff Susan Fischer's injuries. In addition, the defendant claims that the plaintiff Susan Fischer was herself negligent, and that her own negligence was a substantial factor in causing Ms. Fischer's injuries. The defendant has the burden of proving that the plaintiff Susan Fischer was negligent. The defendant is claiming that the plaintiff's negligence was a substantial factor in causing her own injuries. The defendant has the burden of proving that the plaintiff Susan Fischer's negligence was a substantial factor in causing her own |
| injuries.8. . | injuries.8. PJI 1:24. |
| Return to the | Return to the |
| courtroom9. . | courtroom9. PJI 1:103. |
| Juror | Juror |
| note-taking10. . | note-taking10. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits11. . | Exhibits11. PJI 1:94. |
| Use of Pre-Trial Deposition Upon Trial (modified):During the examinations of certain witnesses you may have heard the lawyer for one of the parties read portions of a document referred to as an examination before trial of the witness. You may have heard the lawyers refer to this document as an EBT or deposition.At some point before this trial began the witness, under oath, answered certain questions put to him or her by the lawyers. A court reporter recorded the questions and answers and transcribed them into a document which the witness was later given a copy of in order to have an opportunity to make corrections and to sign before a notary public. The portions of the transcript of the examination before trial that you heard of may be considered as if the witness was testifying from the witness stand and can be used in two ways. First, if you find the testimony at trial is different from that which the witness gave earlier in his or her EBT, you may consider that inconsistency in evaluating the credibility of the witness. Secondly, if the witness at issue is a party to the action, that is, plaintiff Susan Fischer or defendant Caliente Cab Third Avenue, LLC, you may consider the prior sworn testimony, if you believe it, as evidence of what actually occurred rather than what was testified to at trial. In other words, for a party to the action, you are not restricted to using the prior testimony for evaluating | Use of Pre-Trial Deposition Upon Trial (modified):During the examinations of certain witnesses you may have heard the lawyer for one of the parties read portions of a document referred to as an examination before trial of the witness. You may have heard the lawyers refer to this document as an EBT or deposition.At some point before this trial began the witness, under oath, answered certain questions put to him or her by the lawyers. A court reporter recorded the questions and answers and transcribed them into a document which the witness was later given a copy of in order to have an opportunity to make corrections and to sign before a notary public. The portions of the transcript of the examination before trial that you heard of may be considered as if the witness was testifying from the witness stand and can be used in two ways. First, if you find the testimony at trial is different from that which the witness gave earlier in his or her EBT, you may consider that inconsistency in evaluating the credibility of the witness. Secondly, if the witness at issue is a party to the action, that is, plaintiff Susan Fischer or defendant Caliente Cab Third Avenue, LLC, you may consider the prior sworn testimony, if you believe it, as evidence of what actually occurred rather than what was testified to at trial. In other words, for a party to the action, you are not restricted to using the prior testimony for evaluating |
| credibility.12. . | credibility.12. PJI 1:25A. |
| Juror's Use of Professional | Juror's Use of Professional |
| Expertise13. . | Expertise13. PJI 1:26. |
| 5/6 | 5/6 |
| Verdict14. . | Verdict14. PJI 1:27. |
| Exclude | Exclude |
| Sympathy15. . | Sympathy15. PJI 1:97. |
| General Instruction—Special Verdicts16. Jurors, the Court Officer will now distribute copies of the verdict sheet to you. We will be reading the entire verdict sheet together in detail during Part Two of the charge. However, I want you to familiarize yourselves with it before I proceed further. Please look through them, and when you are done, turn them over in your lap and look up so that I know you are ready to proceed.17. Jurors, as you know, this trial concerns a claim by the plaintiff Susan Fischer that she sustained personal injuries as a result of the negligence of the defendant Caliente Cab Third Avenue, LLC. Specifically, plaintiff claims that defendant was negligent in that its steps near the bar where she fell were defective. The defendant Caliente Cab Third Avenue, LLC denies that it was negligent. The defendant also denies that any negligence on its part was a substantial factor in causing the plaintiff Susan Fischer's injuries. Rather, defendant contends that the plaintiff Susan Fischer was herself negligent in failing to see the steps and that Ms. Fischer's own negligence was a substantial factor in causing her own injuries.As you know, there are conflicts in the testimony. Among other disputes in this trial, there is a conflict in the testimony as to the condition of the steps at issue in terms of markings of on them on the date of the occurrence, May 30, 2006. It is your job as the judges of the facts to attempt to reconcile the conflicts. To the extent that the testimony is in conflict and cannot be reconciled, it will be for you to decide what the facts are. You should not presume from the wording of the questions on the verdict sheet that I am telling you how to find. I have no opinion on any disputed factual point, and even if I did, it is only your view, as the judges of the facts which controls. Once you have reached a determination as to what the facts are, that is once you have decided what the condition of the steps were on May 30, 2006, and how the occurrence happened, you can proceed to answer the questions on the verdict | General Instruction—Special Verdicts16. Jurors, the Court Officer will now distribute copies of the verdict sheet to you. We will be reading the entire verdict sheet together in detail during Part Two of the charge. However, I want you to familiarize yourselves with it before I proceed further. Please look through them, and when you are done, turn them over in your lap and look up so that I know you are ready to proceed.17. Jurors, as you know, this trial concerns a claim by the plaintiff Susan Fischer that she sustained personal injuries as a result of the negligence of the defendant Caliente Cab Third Avenue, LLC. Specifically, plaintiff claims that defendant was negligent in that its steps near the bar where she fell were defective. The defendant Caliente Cab Third Avenue, LLC denies that it was negligent. The defendant also denies that any negligence on its part was a substantial factor in causing the plaintiff Susan Fischer's injuries. Rather, defendant contends that the plaintiff Susan Fischer was herself negligent in failing to see the steps and that Ms. Fischer's own negligence was a substantial factor in causing her own injuries.As you know, there are conflicts in the testimony. Among other disputes in this trial, there is a conflict in the testimony as to the condition of the steps at issue in terms of markings of on them on the date of the occurrence, May 30, 2006. It is your job as the judges of the facts to attempt to reconcile the conflicts. To the extent that the testimony is in conflict and cannot be reconciled, it will be for you to decide what the facts are. You should not presume from the wording of the questions on the verdict sheet that I am telling you how to find. I have no opinion on any disputed factual point, and even if I did, it is only your view, as the judges of the facts which controls. Once you have reached a determination as to what the facts are, that is once you have decided what the condition of the steps were on May 30, 2006, and how the occurrence happened, you can proceed to answer the questions on the verdict |
| sheet.18. | sheet.18. PJI 2:36 |
| SV—I. Full Trial—Comparative Fault and Damages (modified): Jurors, please turn over your verdict sheets. This is a negligence case. Questions 1 and 2 concern the plaintiffs claim that the defendant was negligent and that its negligence was a substantial factor in causing the plaintiff's injury. As you see, the first question reads as follows:1. Was the defendant Caliente Cab Third Avenue, LLC negligent?You will answer “yes” or “no.” As indicated underneath the signature lines for question 1, if you answer “yes,” you will proceed to answer question 2. If you answer question 1 “no,” you will stop, and report your verdict to the Court.Question 2 reads as follows:2. Was the defendant Caliente Cab Third Avenue, LLC's negligence a substantial factor in causing plaintiff Susan Fischer's injuries?You will answer “yes” or “no.” As indicated underneath the signature lines for question 2, if you answer “yes,” you will proceed to answer question 3. If you answer question 2 “no,” you will stop, and report your verdict to the Court.Because questions 1 and 2 pertain to the plaintiffs claim that the defendant is liable for Ms. Fischer's injuries, as I mentioned in Part One of the charge, it is the plaintiff who bears the burden of proof on these issues raised in questions 1 and 2.If you have answered “yes” to question 2, you will proceed to answer question 3 regarding the defendant's claim that the plaintiff Susan Fischer's negligence was a substantial factor in causing her own injuries. If you have answered “no” to either question 1 or 2, you will have found that the defendant is not liable and therefore you stop and report your verdict to the Court. If that is the case you need not go on to consider the defendant's claims regarding the plaintiff Susan Fischer's negligence.Question 3 reads as follows:3. Was the plaintiff Susan Fischer negligent?You will answer “yes” or “no.” As indicated underneath the signature lines for question 3, if you answer “yes,” you will proceed to answer question 4. If you answer question 3 “no,” you will proceed to the instructions before question 6.Question 4 reads as follows:4. Was the plaintiff Susan Fischer's negligence a substantial factor in causing her own injuries?You will answer “yes” or “no.” As indicated underneath the signature lines for question 4, if your answer is “yes,” you proceed to the instructions before question 5. If your answer is “no,” you will proceed to the instructions before question 6. Because questions 3 and 4 pertain to the defendant's claim that the plaintiff Susan Fischer was herself negligent and that her negligence was a substantial factor in causing her own injuries, as I mentioned in Part One of the charge, it is the defendant who bears the burden of proof on the issues raised in questions 3 and 4.Only if you have answered “yes” to both questions 3 and 4, will you go on to answer question five which asks you to apportion fault between the defendant and the plaintiff.Question five reads:5. What was the percentage of fault of:Defendant Caliente Cab Third Avenue, LLC ————— %Plaintiff Susan Fischer ————— %You are asked to provide a numerical answer in the form of a percentage.19. Jurors, at this point I want to explain some legal concepts you must understand in order to answer the first five questions.Author's Comment: The Court inserts its explanation of the basic legal concepts directly into its overall instruction concerning the verdict form. This is unconventional but is probably helpful.View From The Bench: This is an interesting technique used by the court, and in this particular case would appear to make the verdict form and the legal concepts more understandable for the jury. A trial judge should keep in mind, however, that very often reversible error is committed when a judge attempts to improvise by straying from the pattern charge in words the judge believes will be better understood by a jury. An attempt to ad lib may end with a reversal and grant of a new trial on appeal. The practitioner should therefore be alert to any error committed by the Court if the judge appears to be deviating materially from the pattern | SV—I. Full Trial—Comparative Fault and Damages (modified): Jurors, please turn over your verdict sheets. This is a negligence case. Questions 1 and 2 concern the plaintiffs claim that the defendant was negligent and that its negligence was a substantial factor in causing the plaintiff's injury. As you see, the first question reads as follows:1. Was the defendant Caliente Cab Third Avenue, LLC negligent?You will answer “yes” or “no.” As indicated underneath the signature lines for question 1, if you answer “yes,” you will proceed to answer question 2. If you answer question 1 “no,” you will stop, and report your verdict to the Court.Question 2 reads as follows:2. Was the defendant Caliente Cab Third Avenue, LLC's negligence a substantial factor in causing plaintiff Susan Fischer's injuries?You will answer “yes” or “no.” As indicated underneath the signature lines for question 2, if you answer “yes,” you will proceed to answer question 3. If you answer question 2 “no,” you will stop, and report your verdict to the Court.Because questions 1 and 2 pertain to the plaintiffs claim that the defendant is liable for Ms. Fischer's injuries, as I mentioned in Part One of the charge, it is the plaintiff who bears the burden of proof on these issues raised in questions 1 and 2.If you have answered “yes” to question 2, you will proceed to answer question 3 regarding the defendant's claim that the plaintiff Susan Fischer's negligence was a substantial factor in causing her own injuries. If you have answered “no” to either question 1 or 2, you will have found that the defendant is not liable and therefore you stop and report your verdict to the Court. If that is the case you need not go on to consider the defendant's claims regarding the plaintiff Susan Fischer's negligence.Question 3 reads as follows:3. Was the plaintiff Susan Fischer negligent?You will answer “yes” or “no.” As indicated underneath the signature lines for question 3, if you answer “yes,” you will proceed to answer question 4. If you answer question 3 “no,” you will proceed to the instructions before question 6.Question 4 reads as follows:4. Was the plaintiff Susan Fischer's negligence a substantial factor in causing her own injuries?You will answer “yes” or “no.” As indicated underneath the signature lines for question 4, if your answer is “yes,” you proceed to the instructions before question 5. If your answer is “no,” you will proceed to the instructions before question 6. Because questions 3 and 4 pertain to the defendant's claim that the plaintiff Susan Fischer was herself negligent and that her negligence was a substantial factor in causing her own injuries, as I mentioned in Part One of the charge, it is the defendant who bears the burden of proof on the issues raised in questions 3 and 4.Only if you have answered “yes” to both questions 3 and 4, will you go on to answer question five which asks you to apportion fault between the defendant and the plaintiff.Question five reads:5. What was the percentage of fault of:Defendant Caliente Cab Third Avenue, LLC ————— %Plaintiff Susan Fischer ————— %You are asked to provide a numerical answer in the form of a percentage.19. Jurors, at this point I want to explain some legal concepts you must understand in order to answer the first five questions.Author's Comment: The Court inserts its explanation of the basic legal concepts directly into its overall instruction concerning the verdict form. This is unconventional but is probably helpful.View From The Bench: This is an interesting technique used by the court, and in this particular case would appear to make the verdict form and the legal concepts more understandable for the jury. A trial judge should keep in mind, however, that very often reversible error is committed when a judge attempts to improvise by straying from the pattern charge in words the judge believes will be better understood by a jury. An attempt to ad lib may end with a reversal and grant of a new trial on appeal. The practitioner should therefore be alert to any error committed by the Court if the judge appears to be deviating materially from the pattern |
| instructions.20. . | instructions.20. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined21. . | Defined21. PJI 2:12. |
| Common Law Standard of | Common Law Standard of |
| Care—Foreseeability22. . | Care—Foreseeability22. PJI 2:70. |
| Proximate | Proximate |
| Cause23. . | Cause23. PJI 2:91. |
| Liability for Condition or Use of Land— Possessor's Liability—Unsafe ConditionAuthor's Comment: This instruction has been revised and expanded since this case was decided and, while it still covers very similar ground, it is now a longer, more thorough, | Liability for Condition or Use of Land— Possessor's Liability—Unsafe ConditionAuthor's Comment: This instruction has been revised and expanded since this case was decided and, while it still covers very similar ground, it is now a longer, more thorough, |
| instruction.24. . | instruction.24. PJI 2:36. |
| Comparative Negligence (modified):If you reach an instruction directing you to answer question 5, then, weighing all the facts and circumstances, you must consider the total negligence, that is, the negligence of both the plaintiff Susan Fischer and the defendant Caliente Cab Third Avenue, LLC, which contributed to causing the plaintiff Susan Fischer's injuries, and determine what percentage of fault is chargeable to each. In your verdict, you will state the percentages you find. The total of those percentages must equal 100%. For example, if you should find that the defendant and the plaintiff were equally at fault you would report that each was 50% responsible. If you should find that one side was more at fault than the other in causing the occurrence, you would assign a higher percentage to that side and a lower percentage to the other, with the total of the percentages equaling 100%. After answering question 5, you will proceed to the instruction before questions 6–8. Questions 6–8 concern the issue of | Comparative Negligence (modified):If you reach an instruction directing you to answer question 5, then, weighing all the facts and circumstances, you must consider the total negligence, that is, the negligence of both the plaintiff Susan Fischer and the defendant Caliente Cab Third Avenue, LLC, which contributed to causing the plaintiff Susan Fischer's injuries, and determine what percentage of fault is chargeable to each. In your verdict, you will state the percentages you find. The total of those percentages must equal 100%. For example, if you should find that the defendant and the plaintiff were equally at fault you would report that each was 50% responsible. If you should find that one side was more at fault than the other in causing the occurrence, you would assign a higher percentage to that side and a lower percentage to the other, with the total of the percentages equaling 100%. After answering question 5, you will proceed to the instruction before questions 6–8. Questions 6–8 concern the issue of |
| damages.25. . Damages—General26. . | damages.25. PJI 2:277. Damages—General26. PJI 2:277A. |
| Damages—Comment by Counsel During Opening or Closing Remarks27. If you decide for the plaintiff on the question of liability, you must include in your verdict an award for past medical expenses, past pain and suffering, and future pain and suffering, which amount shall include an amount for the injuries suffered and for the permanent effect of the injury, if any. Should you award amounts for damages that plaintiff will incur in the future, you must determine the period of years for which those amounts are intended to provide compensation and the amount you fix must represent the full amount awarded to plaintiffs for that item of damage for that future period without reduction to present value. Your verdict will include answers to the following questions which will be submitted to you:6. State separately the amount awarded to plaintiff Susan Fischer for the following items of damages, if any, from the date of the occurrence up to the date of your verdict:(a) Medical expenses; $—————(b) Out-of-Pocket expenses; $—————(c) Pain and suffering, from the date of the occurrence up to the date of your verdict. $—————.If you decide not to make an award for an item of damages, you will insert the word “none” as to that item.Proceed to question 7.7. State separately the amount awarded to plaintiff Susan Fischer for the following item of damages, if any, from the date of your verdict to be incurred in the future.Pain and suffering, including the permanent effect of the injury, from the date of your verdict for the time that plaintiff Susan Fischer could be expected to live. $—————If you make an award for the above item of damages, proceed to Question 8.If you decide not to make an award for the above item of damages, you stop and report your verdict to the court.8. If you have made any award for an amount intended to compensate the plaintiff Susan Fischer for damages to be incurred in the future, then for that item for which an award is made, state the period of years over which such amount is intended to provide compensation.Pain and suffering, including the permanent effect of the injury, to be incurred in the future. ————— yearsOnce you have answered question 8, you will stop and report your verdict to the Court.28. I am now going to define some of the concepts referred to in the questions on damages.Author's Comment: The court continues to frame its instructions within the context of the special verdict | Damages—Comment by Counsel During Opening or Closing Remarks27. If you decide for the plaintiff on the question of liability, you must include in your verdict an award for past medical expenses, past pain and suffering, and future pain and suffering, which amount shall include an amount for the injuries suffered and for the permanent effect of the injury, if any. Should you award amounts for damages that plaintiff will incur in the future, you must determine the period of years for which those amounts are intended to provide compensation and the amount you fix must represent the full amount awarded to plaintiffs for that item of damage for that future period without reduction to present value. Your verdict will include answers to the following questions which will be submitted to you:6. State separately the amount awarded to plaintiff Susan Fischer for the following items of damages, if any, from the date of the occurrence up to the date of your verdict:(a) Medical expenses; $—————(b) Out-of-Pocket expenses; $—————(c) Pain and suffering, from the date of the occurrence up to the date of your verdict. $—————.If you decide not to make an award for an item of damages, you will insert the word “none” as to that item.Proceed to question 7.7. State separately the amount awarded to plaintiff Susan Fischer for the following item of damages, if any, from the date of your verdict to be incurred in the future.Pain and suffering, including the permanent effect of the injury, from the date of your verdict for the time that plaintiff Susan Fischer could be expected to live. $—————If you make an award for the above item of damages, proceed to Question 8.If you decide not to make an award for the above item of damages, you stop and report your verdict to the court.8. If you have made any award for an amount intended to compensate the plaintiff Susan Fischer for damages to be incurred in the future, then for that item for which an award is made, state the period of years over which such amount is intended to provide compensation.Pain and suffering, including the permanent effect of the injury, to be incurred in the future. ————— yearsOnce you have answered question 8, you will stop and report your verdict to the Court.28. I am now going to define some of the concepts referred to in the questions on damages.Author's Comment: The court continues to frame its instructions within the context of the special verdict |
| form.29. . | form.29. PJI 2:280. |
| Damages—Personal Injury—Injury And Pain And | Damages—Personal Injury—Injury And Pain And |
| Suffering30. . | Suffering30. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence, Life Expectancy | Damages—Personal Injury—Future—Permanence, Life Expectancy |
| Tables31. . | Tables31. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (modified):Plaintiff Susan Fischer is entitled to recover the amount of reasonable expenditures for medical services and medicines, including physician's charges, nursing charges, hospital expenses, diagnostic expenses and X-ray charges. If you decide for plaintiff on the question of liability, you will include in your verdict the amount that you find from the evidence to be the fair and reasonable amount of the medical expenses necessarily incurred as a result of plaintiff's injuries. In your verdict you will state separately the amount awarded for medical expenses to date, if any.In question 6 you are also asked to determine what out-of-pocket expenses plaintiff was required to pay that were due to the occurrence.32. Jurors, that concludes the second part of my charge. I'm almost done, just a few final instructions on conducting your deliberations. Please continue to pay careful attention, as you have thus far.Author's Comment: The court punctuates its instructions with narrative “pauses” to transition from one topic to the | Damages—Personal Injury—Expenses Incurred (modified):Plaintiff Susan Fischer is entitled to recover the amount of reasonable expenditures for medical services and medicines, including physician's charges, nursing charges, hospital expenses, diagnostic expenses and X-ray charges. If you decide for plaintiff on the question of liability, you will include in your verdict the amount that you find from the evidence to be the fair and reasonable amount of the medical expenses necessarily incurred as a result of plaintiff's injuries. In your verdict you will state separately the amount awarded for medical expenses to date, if any.In question 6 you are also asked to determine what out-of-pocket expenses plaintiff was required to pay that were due to the occurrence.32. Jurors, that concludes the second part of my charge. I'm almost done, just a few final instructions on conducting your deliberations. Please continue to pay careful attention, as you have thus far.Author's Comment: The court punctuates its instructions with narrative “pauses” to transition from one topic to the |
| next.33. . | next.33. PJI 1:28. |
| Conclusion (modified):I have now outlined for you the rules of law that apply to this case and the processes by which you weigh the evidence and decide the facts. In a few minutes you will retire to the jury room for your deliberations. In order that your deliberations may proceed in an orderly fashion, you must have a foreperson, but of course, his or her vote is entitled to no greater weight than that of any other juror. The foreperson will also record your verdict on the verdict sheet and report it to the court when you return to the courtroom at the conclusion of your deliberations. The foreperson is also responsible for writing and sending any questions, requests or communications you may have for the court.Please bear in mind that any note you send should be signed by the foreperson. Please be as specific as possible, and put a time and date on the note. You will be provided a form for jury notes. Also, please do not in any note you send out indicate what your verdict may be, or, if you are split, what the split may be among you—in other words, 4 to 2, 3 to 3, 5 to 1, etc. When you have reached a verdict, that is, you have reached an instruction that says “STOP, and report your verdict to the court,” merely indicate in a note that you have reached a verdict without stating what it is. You will inform us of what the verdict is when you are all present in the courtroom and the court reporter is present to record it. Traditionally, juror number 1 acts as foreperson. This is merely a tradition, and you may, if you wish, choose to elect another juror to serve as the foreperson.Jurors, your function—to reach a fair decision from the law and the evidence—is an important one. When you are in the jury room, listen to each other, and discuss the evidence and issues in the case among yourselves. It is the duty of each of you, as jurors, to consult with one another, and to deliberate with a view of reaching agreement on a verdict, if you can do so, without violating your individual judgment and your conscience. While you should not surrender conscientiously held convictions of what the truth is, and of the weight and effect of the evidence is, and while each of you must decide the case for yourself, and not merely consent to the decision of the other jurors, you should examine the issues and the evidence before you with candor and frankness, and with proper respect and regard for the opinions of each juror. Remember in your deliberations that resolution of this dispute between the parties is a very important matter. The parties and the Court rely upon you to give full and conscientious deliberation and consideration to the issues and evidence before you. By doing so, you carry out to the fullest your oaths as jurors to truly try the issues of this case and to render a true verdict.Finally, if any of the deliberating jurors are smokers it is the policy of the Unified Court System and New York City law that there is no smoking in the jury room or anywhere else in the courthouse. If any of you needs to take a smoking break, you must cease deliberations and notify the court officer. You will be escorted to a location outside the courthouse where it is permissible to smoke. During any smoking break, or, for that matter during any break, such as a restroom break, or for any other reason that all six of you are not present around the deliberation table, you must cease deliberating. You may only deliberate and discuss the issues before you when all six are present and able to participate. Deliberations are not to be held in sub-committee or caucuses. Clearly then, it is desirable to keep any breaks to a minimum.Jurors, that concludes my instructions to you. You will be provided a written copy of these instructions for your use in the jury room once I have made corrections of typographical errors I caught while reading the charge aloud. However, if at any point there is any question as to the meaning of these instructions, or, if you believe that I have delivered the oral charge differently from what is written here, or if you have any question whatsoever regarding the law, it is your duty to send a note out posing your question and seeking guidance from the Court as to the law. If you wish to see any exhibit which was admitted into evidence, please send a note requesting it and it will be sent into you. Bear in mind that there might be some delay if the parties have to first redact certain | Conclusion (modified):I have now outlined for you the rules of law that apply to this case and the processes by which you weigh the evidence and decide the facts. In a few minutes you will retire to the jury room for your deliberations. In order that your deliberations may proceed in an orderly fashion, you must have a foreperson, but of course, his or her vote is entitled to no greater weight than that of any other juror. The foreperson will also record your verdict on the verdict sheet and report it to the court when you return to the courtroom at the conclusion of your deliberations. The foreperson is also responsible for writing and sending any questions, requests or communications you may have for the court.Please bear in mind that any note you send should be signed by the foreperson. Please be as specific as possible, and put a time and date on the note. You will be provided a form for jury notes. Also, please do not in any note you send out indicate what your verdict may be, or, if you are split, what the split may be among you—in other words, 4 to 2, 3 to 3, 5 to 1, etc. When you have reached a verdict, that is, you have reached an instruction that says “STOP, and report your verdict to the court,” merely indicate in a note that you have reached a verdict without stating what it is. You will inform us of what the verdict is when you are all present in the courtroom and the court reporter is present to record it. Traditionally, juror number 1 acts as foreperson. This is merely a tradition, and you may, if you wish, choose to elect another juror to serve as the foreperson.Jurors, your function—to reach a fair decision from the law and the evidence—is an important one. When you are in the jury room, listen to each other, and discuss the evidence and issues in the case among yourselves. It is the duty of each of you, as jurors, to consult with one another, and to deliberate with a view of reaching agreement on a verdict, if you can do so, without violating your individual judgment and your conscience. While you should not surrender conscientiously held convictions of what the truth is, and of the weight and effect of the evidence is, and while each of you must decide the case for yourself, and not merely consent to the decision of the other jurors, you should examine the issues and the evidence before you with candor and frankness, and with proper respect and regard for the opinions of each juror. Remember in your deliberations that resolution of this dispute between the parties is a very important matter. The parties and the Court rely upon you to give full and conscientious deliberation and consideration to the issues and evidence before you. By doing so, you carry out to the fullest your oaths as jurors to truly try the issues of this case and to render a true verdict.Finally, if any of the deliberating jurors are smokers it is the policy of the Unified Court System and New York City law that there is no smoking in the jury room or anywhere else in the courthouse. If any of you needs to take a smoking break, you must cease deliberations and notify the court officer. You will be escorted to a location outside the courthouse where it is permissible to smoke. During any smoking break, or, for that matter during any break, such as a restroom break, or for any other reason that all six of you are not present around the deliberation table, you must cease deliberating. You may only deliberate and discuss the issues before you when all six are present and able to participate. Deliberations are not to be held in sub-committee or caucuses. Clearly then, it is desirable to keep any breaks to a minimum.Jurors, that concludes my instructions to you. You will be provided a written copy of these instructions for your use in the jury room once I have made corrections of typographical errors I caught while reading the charge aloud. However, if at any point there is any question as to the meaning of these instructions, or, if you believe that I have delivered the oral charge differently from what is written here, or if you have any question whatsoever regarding the law, it is your duty to send a note out posing your question and seeking guidance from the Court as to the law. If you wish to see any exhibit which was admitted into evidence, please send a note requesting it and it will be sent into you. Bear in mind that there might be some delay if the parties have to first redact certain |
| information.34. . | information.34. PJI 1:29. |
| Alternate JurorsC. Case Documents Available on Westlaw1. Jury Instruction, | Alternate JurorsC. Case Documents Available on Westlaw1. Jury Instruction, |
| Verdict | 2008 WL 5415454Verdict |
| and Settlement Summary, | and Settlement Summary, |
| Memorandum | 2008 WL 3914033Memorandum |
| of Law in Support of Defendant's Motion to Preclude Plaintiff's Expert Witness, Stanley Fein, from Testifying, | of Law in Support of Defendant's Motion to Preclude Plaintiff's Expert Witness, Stanley Fein, from Testifying, |
| Second | 2008 WL 5415202Second |
| Amended Verified Complaint, | Amended Verified Complaint, |
| 2. Sample | 2008 WL 54151682. Sample |
| Westlaw Query for Trial Court Documents in Similar Cases:stair! /p injur! & design “dangerous condition”D. Research References1.Key | Westlaw Query for Trial Court Documents in Similar Cases:stair! /p injur! & design “dangerous condition”D. Research References1.Key |
| Numbers | NumbersNegligence 1000 |
| to | to |
| 1320Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of TortsNew York Vehicle and Traffic Law4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:175§ 6:15 Premises liability: escalator malfunctionA. BackgroundType of Case: Premises liability; Escalator malfunctionType of Damages: Personal injury, suffering, loss of income, medical expensesCase Name: C.O. Falter Construction Corporation v Cincinnati Insurance CompanyCourt: New York State Supreme Court, Queens CountyJudge: Honorable Frederick D.R. Sampson,Docket Number: 4669/09Outcome: Not known.Brief Summary of Factual Allegations: This was a suit against the owner and manager of the premises and the company with which the owner had contracted to maintain and repair the escalator, for damages for personal injuries arising from an escalator abruptly stopped while the plaintiff was on it. It was alleged that the accident and the resulting injuries were caused by reason of the carelessness, negligence, and recklessness of the defendants concurrently, jointly and/or severally which negligence, carelessness and recklessness consisted of the following amongst other things: in failing to keep, maintain, repair and inspect the escalators of the said premises in a reasonably safe condition fit for human usage; in failing to timely and adequately repair defects in the escalators and their appurtenant parts; in failing to abide by the requirements and rules and regulations of the New York City Building Department; in failing to take a defective escalator out of service; in failing to inspect, repair and replace component parts of the escalator systems at the said premises, and if such work was performed, then same was performed in a negligent and careless manner; in permitting a dangerous and defective escalator system to be and remain at the premises, and in failing to follow accepted standards, modes, customs and practices made and provided for escalator systems in multi-story buildings.It was further alleged that as a result of the occurrence the plaintiff was rendered sick, sore, lame and disabled and was caused to be hospitalized, receive medical attention, incur obligations for medical treatment, medications, therapy, endure painful procedures, suffer extreme pain, discomfort, be disabled, suffer loss of income, opportunity and benefits, incur the loss of enjoyment of life, suffer mental anguish, embarrassment, said Plaintiff will in the future, continue to suffer pain, anguish, disability and to incur further and continuing expenses and obligations for future medical care, treatment, medications, and suffer other and continuing losses as herein described.B. Plaintiff's Proposed Jury Instructions1. Proposed Instructions Concerning Liability1. Burden of proof—PJI 1:602. Consider only testimony and exhibits—PJI 1:253. Five-sixths verdict—PJI 1:264. Interested witness—party (Plaintiff)—PJI 1:915. Interested witness—employee of party (Scott Dimino)—PJI 1:926. Circumstantial evidence—PJI 1:707. Negligence defined-PJI 2:107(a) Vicarious Liability for Employee—PJI 2:235 (as to Scott Dimino)8. Possessor's liability—Standard of care—PJI 2:90, but omitting the paragraphs concerning whether Plaintiff's presence was foreseeable, failure to warn, and open and obvious conditions.Plaintiff's contentions are that the owner failed to take notice of the prior instances of elevator stoppage, and failed to take notice of the continued failure of the escalator to meet the recommendations of Neto Associates as to the conditions of the escalator that needed to be investigated and corrected.9. Elevator/escalator contractor's liability—standard of care:A company that undertakes to maintain an escalator in good operating condition, and which provides the only maintenance, repair, and services that the escalator receives, has a duty to use reasonable care in the maintenance, repair, and servicing of the escalator for the protection of all persons who may reasonably be expected to utilize the escalator. In order to recover as against Schindler Elevator Corp., Plaintiff must prove that the escalator was not reasonably safe, that the defendant Schindler Elevator Corp. was negligent in not keeping the escalator in a reasonably safe condition, and that defendant Schindler Elevator Corp.'s negligence was a substantial factor in causing the accident. Plaintiff contends that Schindler Elevator Corp. was negligent in failing to properly investigate prior stoppages, in failing to eliminate excessive vibration and noises coming from the escalator, and in failing to comply with the Neto Associates recommendations to investigate and correct deficiencies disclosed on the Neto Associates reports, which have also been referred to as punch lists. If you find that Schindler Elevator Corp. failed to exercise reasonable care in the maintenance, repair, and servicing of the escalator, you will find that Schindler Elevator Corp. was negligent. If you find that Schindler Elevator Corp. exercised reasonable care in its service, maintenance, and repair of the escalator, then you will find that Schindler was not negligent. (Stewart v. World Elevator Co., 84 AD3d 491 [1st Dept. 2011]; Rogers v. Dorchester Assoc., 32 NY2d 553 [1973]).10. Negligence—defendant having special knowledge (as to Schindler Elevator Corp.—PJI 2:1511. Foreseeability—PJI 2:1212. Res ipsa—PJI 2:6513. Proximate cause—PJI 2:7014. Concurrent Causes—PJI 2:7115. If the Court charges comparative negligence, Plaintiff requests: Emergency situation charge as to Plaintiff—PJI 2:142. Proposed Questions for Jury on Liability1. A. Was Defendant American International Realty Corp. negligent?B. If your answer to question 1(A) was Yes, was the negligence of Defendant American International Realty Corp. a substantial factor in causing the accident?2. A. Was Defendant Schindler Elevator Corp. negligent?B. If your answer to question 2(A) was Yes, was the negligence of Defendant American International Corp. a substantial factor in causing the accident?[and: if the court finds prima facie evidence of comparative negligence:]3. A. Was Plaintiff negligent?B. If your answer to question 3(A) was Yes, was the negligence of Plaintiff a substantial factor in causing the accident?If you answered “Yes” to more than one of questions 1(B), 2(B), and/or 3(B), apportion the fault of the parties by percentage. The percentages assigned must add up to 100%.3. Proposed Instructions Concerning Damages1. Damages—Comment by Counsel: | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of TortsNew York Vehicle and Traffic Law4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:175§ 6:15 Premises liability: escalator malfunctionA. BackgroundType of Case: Premises liability; Escalator malfunctionType of Damages: Personal injury, suffering, loss of income, medical expensesCase Name: C.O. Falter Construction Corporation v Cincinnati Insurance CompanyCourt: New York State Supreme Court, Queens CountyJudge: Honorable Frederick D.R. Sampson,Docket Number: 4669/09Outcome: Not known.Brief Summary of Factual Allegations: This was a suit against the owner and manager of the premises and the company with which the owner had contracted to maintain and repair the escalator, for damages for personal injuries arising from an escalator abruptly stopped while the plaintiff was on it. It was alleged that the accident and the resulting injuries were caused by reason of the carelessness, negligence, and recklessness of the defendants concurrently, jointly and/or severally which negligence, carelessness and recklessness consisted of the following amongst other things: in failing to keep, maintain, repair and inspect the escalators of the said premises in a reasonably safe condition fit for human usage; in failing to timely and adequately repair defects in the escalators and their appurtenant parts; in failing to abide by the requirements and rules and regulations of the New York City Building Department; in failing to take a defective escalator out of service; in failing to inspect, repair and replace component parts of the escalator systems at the said premises, and if such work was performed, then same was performed in a negligent and careless manner; in permitting a dangerous and defective escalator system to be and remain at the premises, and in failing to follow accepted standards, modes, customs and practices made and provided for escalator systems in multi-story buildings.It was further alleged that as a result of the occurrence the plaintiff was rendered sick, sore, lame and disabled and was caused to be hospitalized, receive medical attention, incur obligations for medical treatment, medications, therapy, endure painful procedures, suffer extreme pain, discomfort, be disabled, suffer loss of income, opportunity and benefits, incur the loss of enjoyment of life, suffer mental anguish, embarrassment, said Plaintiff will in the future, continue to suffer pain, anguish, disability and to incur further and continuing expenses and obligations for future medical care, treatment, medications, and suffer other and continuing losses as herein described.B. Plaintiff's Proposed Jury Instructions1. Proposed Instructions Concerning Liability1. Burden of proof—PJI 1:602. Consider only testimony and exhibits—PJI 1:253. Five-sixths verdict—PJI 1:264. Interested witness—party (Plaintiff)—PJI 1:915. Interested witness—employee of party (Scott Dimino)—PJI 1:926. Circumstantial evidence—PJI 1:707. Negligence defined-PJI 2:107(a) Vicarious Liability for Employee—PJI 2:235 (as to Scott Dimino)8. Possessor's liability—Standard of care—PJI 2:90, but omitting the paragraphs concerning whether Plaintiff's presence was foreseeable, failure to warn, and open and obvious conditions.Plaintiff's contentions are that the owner failed to take notice of the prior instances of elevator stoppage, and failed to take notice of the continued failure of the escalator to meet the recommendations of Neto Associates as to the conditions of the escalator that needed to be investigated and corrected.9. Elevator/escalator contractor's liability—standard of care:A company that undertakes to maintain an escalator in good operating condition, and which provides the only maintenance, repair, and services that the escalator receives, has a duty to use reasonable care in the maintenance, repair, and servicing of the escalator for the protection of all persons who may reasonably be expected to utilize the escalator. In order to recover as against Schindler Elevator Corp., Plaintiff must prove that the escalator was not reasonably safe, that the defendant Schindler Elevator Corp. was negligent in not keeping the escalator in a reasonably safe condition, and that defendant Schindler Elevator Corp.'s negligence was a substantial factor in causing the accident. Plaintiff contends that Schindler Elevator Corp. was negligent in failing to properly investigate prior stoppages, in failing to eliminate excessive vibration and noises coming from the escalator, and in failing to comply with the Neto Associates recommendations to investigate and correct deficiencies disclosed on the Neto Associates reports, which have also been referred to as punch lists. If you find that Schindler Elevator Corp. failed to exercise reasonable care in the maintenance, repair, and servicing of the escalator, you will find that Schindler Elevator Corp. was negligent. If you find that Schindler Elevator Corp. exercised reasonable care in its service, maintenance, and repair of the escalator, then you will find that Schindler was not negligent. (Stewart v. World Elevator Co., 84 AD3d 491 [1st Dept. 2011]; Rogers v. Dorchester Assoc., 32 NY2d 553 [1973]).10. Negligence—defendant having special knowledge (as to Schindler Elevator Corp.—PJI 2:1511. Foreseeability—PJI 2:1212. Res ipsa—PJI 2:6513. Proximate cause—PJI 2:7014. Concurrent Causes—PJI 2:7115. If the Court charges comparative negligence, Plaintiff requests: Emergency situation charge as to Plaintiff—PJI 2:142. Proposed Questions for Jury on Liability1. A. Was Defendant American International Realty Corp. negligent?B. If your answer to question 1(A) was Yes, was the negligence of Defendant American International Realty Corp. a substantial factor in causing the accident?2. A. Was Defendant Schindler Elevator Corp. negligent?B. If your answer to question 2(A) was Yes, was the negligence of Defendant American International Corp. a substantial factor in causing the accident?[and: if the court finds prima facie evidence of comparative negligence:]3. A. Was Plaintiff negligent?B. If your answer to question 3(A) was Yes, was the negligence of Plaintiff a substantial factor in causing the accident?If you answered “Yes” to more than one of questions 1(B), 2(B), and/or 3(B), apportion the fault of the parties by percentage. The percentages assigned must add up to 100%.3. Proposed Instructions Concerning Damages1. Damages—Comment by Counsel: |
| 2. Injury | PJI 2:277A2. Injury |
| and pain and suffering: | and pain and suffering: |
| 3. Loss | PJI 2:2803. Loss |
| of enjoyment of life: | of enjoyment of life: |
| 4. Future | PJI 2:280.14. Future |
| damages—permanence—life expectancy tables: PJI 2:2815. Loss of earnings—PJI 2:2906. Effect of income taxes not to be considered—2:280.2 (omitting the opening phrase “If your verdict is in favor of plaintiff”)7. Expert witnesses—PJI 2:904. Proposed Questions for Jury on Damages1. State separately the amount awarded for the following items of damages, if any, up to the date of your verdict:A. Pain and sufferingB. Loss of earningsIf you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.At least five jurors must agree on the answer to this question.2. State separately the amount awarded for the following items of damages, if any, from the date of your verdict to be incurred in the future:A. Pain and suffering, including the permanent effect of the injury, from the time of verdict for the time that plaintiff could be expected to liveB. Loss of earningsIf you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.At least five jurors must agree on the answer to this question.3. If you have made any award for amounts intended to compensate the plaintiff for damages to be incurred in the future, then for each item for which an award is made, state the period of years over which such amounts are intended to provide compensation.A. Pain and suffering, including the permanent effect of the injuryB. Loss of earningsIf you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.At least five jurors must agree on the answer to this question.C. Case documents Available on Westlaw1.Particular documentsPleading, Verified Complaint, | damages—permanence—life expectancy tables: PJI 2:2815. Loss of earnings—PJI 2:2906. Effect of income taxes not to be considered—2:280.2 (omitting the opening phrase “If your verdict is in favor of plaintiff”)7. Expert witnesses—PJI 2:904. Proposed Questions for Jury on Damages1. State separately the amount awarded for the following items of damages, if any, up to the date of your verdict:A. Pain and sufferingB. Loss of earningsIf you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.At least five jurors must agree on the answer to this question.2. State separately the amount awarded for the following items of damages, if any, from the date of your verdict to be incurred in the future:A. Pain and suffering, including the permanent effect of the injury, from the time of verdict for the time that plaintiff could be expected to liveB. Loss of earningsIf you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.At least five jurors must agree on the answer to this question.3. If you have made any award for amounts intended to compensate the plaintiff for damages to be incurred in the future, then for each item for which an award is made, state the period of years over which such amounts are intended to provide compensation.A. Pain and suffering, including the permanent effect of the injuryB. Loss of earningsIf you decide not to make an award as to any of the above items, you will insert the word “none” as to that item.At least five jurors must agree on the answer to this question.C. Case documents Available on Westlaw1.Particular documentsPleading, Verified Complaint, |
| Trial | 2009 WL 8614548Trial |
| Memorandum, Reply Affirmation to Plaintiff's Opposition to Motion, | Memorandum, Reply Affirmation to Plaintiff's Opposition to Motion, |
| Trial | 2012 WL 1932579Trial |
| Memorandum, Reply Affirmation to Codefendant's Opposition to Motion, | Memorandum, Reply Affirmation to Codefendant's Opposition to Motion, |
| Trial | 2012 WL 1932580Trial |
| Memorandum, Defendant's Preliminary Trial Memorandum in Opposition, | Memorandum, Defendant's Preliminary Trial Memorandum in Opposition, |
| Trial | 2012 WL 1932527Trial |
| Memorandum, Plaintiff's Preliminary Trial Memorandum, | Memorandum, Plaintiff's Preliminary Trial Memorandum, |
| Jury | 2012 WL 1932528Jury |
| Instructions, Plaintiff's Preliminary Requests to Charge: Damages, | Instructions, Plaintiff's Preliminary Requests to Charge: Damages, |
| Jury | 2012 WL 1932509Jury |
| instructions, Plaintiff's Preliminary Requests to Charge: Liability, | instructions, Plaintiff's Preliminary Requests to Charge: Liability, |
| Docket, | 2012 WL 1932510 (N.Y.Sup.)Docket, |
| Docket 0004669/20092.Sample Westlaw Query for Trial Court Documents in Similar Cases:escalator/5 abrupt!D. Research References1.Key NumbersWest's Key Number Digest, | Docket 0004669/20092.Sample Westlaw Query for Trial Court Documents in Similar Cases:escalator/5 abrupt!D. Research References1.Key NumbersWest's Key Number Digest, |
| Negligence |
| 28, | 28, |
| 1000 |
| to | to |
| West's | 1320West's |
| Key Number Digest, | Key Number Digest, |
| Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 6:32, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 6:32, |
| Appendix 6A Outline | 6:34Appendix 6A Outline |
| of PJI Comments for Premises LiabilityMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Premises Liability, on the following specific | of PJI Comments for Premises LiabilityMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Premises Liability, on the following specific |
| topics:Liability | topics:•Liability |
| to Persons on the | to Persons on the |
| LandStandard | Land•Standard |
| of | of |
| CareLiability | Care•Liability |
| to Persons Outside the Land for Abnormally Dangerous ConductLiability for Condition or Use of Land — To Persons on the LandIntroduction preceding | to Persons Outside the Land for Abnormally Dangerous ConductLiability for Condition or Use of Land — To Persons on the LandIntroduction preceding |
| (vol. | PJI 2:90(vol. |
| 1A, NY PJI, at 579 (2018))IntroductionI.Reasonable Standard of CareII.Predicate for LiabilityIII.General Obligations Law §§ 5-301 et seq.A.Lessors and ContractorsB.Owners and Operators of Applicable EstablishmentsIV.General Obligations Law § 9-103A.General PrinciplesB.SuitabilityC.Enumerated Recreational ActivitiesD.Owners, Lessees and OccupantsE.State and Municipal LandF.Other ConsiderationsPossessor's Liability for Condition or Use of Premises — Standard of CareComment following | 1A, NY PJI, at 579 (2018))IntroductionI.Reasonable Standard of CareII.Predicate for LiabilityIII.General Obligations Law §§ 5-301 et seq.A.Lessors and ContractorsB.Owners and Operators of Applicable EstablishmentsIV.General Obligations Law § 9-103A.General PrinciplesB.SuitabilityC.Enumerated Recreational ActivitiesD.Owners, Lessees and OccupantsE.State and Municipal LandF.Other ConsiderationsPossessor's Liability for Condition or Use of Premises — Standard of CareComment following |
| (NY | |
| PJI | PJI |
| 2:90(NY PJI |
| Vol. 1A, at 594 | Vol. 1A, at 594 |
| (2018))Firefighters, | (2018))•Firefighters, |
| Police Officers and Others Entering at Unusual Times or Remote | Police Officers and Others Entering at Unusual Times or Remote |
| LocationsTrespassersDefective ConditionsNatural | Locations•Trespassers•Defective Conditions•Natural |
| Geographic | Geographic |
| FeaturesUnsafe | Features•Unsafe |
| Conditions on Adjoining | Conditions on Adjoining |
| PropertyDuty | Property•Duty |
| to Control | to Control |
| VegetationInnkeepers' DutiesFire | Vegetation•Innkeepers' Duties•Fire |
| Prevention and | Prevention and |
| DetectionLead PaintImproper MaintenanceProtection | Detection•Lead Paint•Improper Maintenance•Protection |
| from Criminal | from Criminal |
| ActivityDuty | Activity•Duty |
| to | to |
| IlluminateDuty | Illuminate•Duty |
| to | to |
| WarnAssumption | Warn•Assumption |
| of | of |
| RiskNoticeSnow, | Risk•Notice•Snow, |
| Ice and RainPossessor's Liability to Outside Persons for Abnormally Dangerous ConductComment following | Ice and RainPossessor's Liability to Outside Persons for Abnormally Dangerous ConductComment following |
| (Vol. | NY PJI 2:112(Vol. |
| 1A, NY PJI, at 734 (2018))I.In GeneralII.Strict Liability for Blasting ActivitiesIII.Injury Caused by Vibration from Pile Driving or Use of Heavy MachineryChapter 7AnimalsA. Finding the Applicable Law and Instructions§ 7:1NY PJI coverageB. Illustrative Cases§ 7:2Animals; escaped security dog; two plaintiffs, one individual defendant, two corporate defendantsAppendix 7A. Outline of PJI Comment Regarding Injuries Caused by AnimalsKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding the Applicable Law and Instructions§ 7:1 NY PJI coverageAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.NY PJI's coverage of liability relating to vicious and violent animals appears at | 1A, NY PJI, at 734 (2018))I.In GeneralII.Strict Liability for Blasting ActivitiesIII.Injury Caused by Vibration from Pile Driving or Use of Heavy MachineryChapter 7AnimalsA. Finding the Applicable Law and Instructions§ 7:1NY PJI coverageB. Illustrative Cases§ 7:2Animals; escaped security dog; two plaintiffs, one individual defendant, two corporate defendantsAppendix 7A. Outline of PJI Comment Regarding Injuries Caused by AnimalsKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding the Applicable Law and Instructions§ 7:1 NY PJI coverageAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.NY PJI's coverage of liability relating to vicious and violent animals appears at |
| .B. Illustrative | NY PJI 2:220.B. Illustrative |
| Cases§ 7:2 Animals; escaped security dog; two plaintiffs, one individual defendant, two corporate defendantsA. BackgroundType of Case: Personal injury; premises liability; negligence—liability for injuries inflicted by vicious, uncontrolled guard dog/Two plaintiffs, one individual defendant, two corporate defendantsType of Injury: Physical injury to child, emotional distress to mother and childCase Name: Brooke Michelle Goldstein and Robin Goldstein, Plaintiffs, v. Concrete Depot Corp., Kevin Radigan a/k/a Kevin Riley and 16 Derick Court, LLC, De-fendants.Court: Supreme Court of New York, Richmond CountyJudge: John A. FuscoDocket Number: No. 100213/09Verdict Date: June 22, 2011Outcome: Verdict of $175,000 in favor of plaintiff Michelle Goldstein for her pain and suffering and loss of enjoyment of life, from the date of the incident up to the date of the jury verdict: $50,000 for her pain and suffering and loss of enjoyment of life, from the date of the verdict until the time she could be expected to live (57.3 years); and $2,000 for her past medical bills. The jury rendered a verdict of $0 for plaintiff Robin Goldstein.During deliberations, counsel stipulated on the record to a High/Low ranging from $125,00 to $425,000.Summary of allegations: Plaintiffs, mother and daughter, alleged a violent attack on the child by a pit bull used as a security dog known to be inherently vicious and violent, resulting in physical injury to the child and emotional injury to the mother. The dog was alleged to have escaped from the premises where it was being used as a guard dog, which premises were alleged to have been owned by entities in which the individual defendant was a principal, or, in the alternative, by the individual defendant himself. The complaint alleged that the individual defendant failed to properly secure and or tie up the pit bull and allowed and permitted the dog to leave the premises it was guarding. It was further alleged that the dog had previously exhibited vicious and aggressive tendencies and/or had attacked other individuals, and that the individual defendant knew or should have known of the subject dog's prior vicious and violent propensities. The child was alleged to have been legally unlawfully premises on which she was attacked, and the mother to have been in that vicinity when she observed the attack. Further, it was alleged that the defendants failed to warn the plaintiffs of the dog's vicious and violent propensities, that the defendants violated local ordinances, statutes and laws concerning the care and ownership of the dog, that the defendants were reckless and negligent in their ownership, control, and care of the subject premises and dog, and that the defendants acted in total disregard for the public safety.During jury deliberations counsel stipulated on the record to a High/Low ranging from $12,500 to $425,000.B. Final Jury | Cases§ 7:2 Animals; escaped security dog; two plaintiffs, one individual defendant, two corporate defendantsA. BackgroundType of Case: Personal injury; premises liability; negligence—liability for injuries inflicted by vicious, uncontrolled guard dog/Two plaintiffs, one individual defendant, two corporate defendantsType of Injury: Physical injury to child, emotional distress to mother and childCase Name: Brooke Michelle Goldstein and Robin Goldstein, Plaintiffs, v. Concrete Depot Corp., Kevin Radigan a/k/a Kevin Riley and 16 Derick Court, LLC, De-fendants.Court: Supreme Court of New York, Richmond CountyJudge: John A. FuscoDocket Number: No. 100213/09Verdict Date: June 22, 2011Outcome: Verdict of $175,000 in favor of plaintiff Michelle Goldstein for her pain and suffering and loss of enjoyment of life, from the date of the incident up to the date of the jury verdict: $50,000 for her pain and suffering and loss of enjoyment of life, from the date of the verdict until the time she could be expected to live (57.3 years); and $2,000 for her past medical bills. The jury rendered a verdict of $0 for plaintiff Robin Goldstein.During deliberations, counsel stipulated on the record to a High/Low ranging from $125,00 to $425,000.Summary of allegations: Plaintiffs, mother and daughter, alleged a violent attack on the child by a pit bull used as a security dog known to be inherently vicious and violent, resulting in physical injury to the child and emotional injury to the mother. The dog was alleged to have escaped from the premises where it was being used as a guard dog, which premises were alleged to have been owned by entities in which the individual defendant was a principal, or, in the alternative, by the individual defendant himself. The complaint alleged that the individual defendant failed to properly secure and or tie up the pit bull and allowed and permitted the dog to leave the premises it was guarding. It was further alleged that the dog had previously exhibited vicious and aggressive tendencies and/or had attacked other individuals, and that the individual defendant knew or should have known of the subject dog's prior vicious and violent propensities. The child was alleged to have been legally unlawfully premises on which she was attacked, and the mother to have been in that vicinity when she observed the attack. Further, it was alleged that the defendants failed to warn the plaintiffs of the dog's vicious and violent propensities, that the defendants violated local ordinances, statutes and laws concerning the care and ownership of the dog, that the defendants were reckless and negligent in their ownership, control, and care of the subject premises and dog, and that the defendants acted in total disregard for the public safety.During jury deliberations counsel stipulated on the record to a High/Low ranging from $12,500 to $425,000.B. Final Jury |
| Charges1. Introduction2. | Charges1. PJI 1:20 Introduction2. PJI 1:22 |
| Falsus In | Falsus In |
| Uno3. | Uno3. PJI 1:23 |
| Burden Of | Burden Of |
| Proof4. | Proof4. PJI 1:37 |
| Jury | Jury |
| Function5. | Function5. PJI 1:38 |
| Court's | Court's |
| Function6. | Function6. PJI 1:27 |
| Exclude | Exclude |
| Sympathy7. | Sympathy7. PJI 1:25 |
| Consider Only Testimony And | Consider Only Testimony And |
| Exhibits8. | Exhibits8. PJI 1:39 |
| No Inference From | No Inference From |
| Rulings9. | Rulings9. PJI 1:40 |
| Consider Only Competent | Consider Only Competent |
| Evidence10. | Evidence10. PJI 1:41 |
| Weighing | Weighing |
| Testimony11. | Testimony11. PJI 1:55 |
| General Instruction—Admission By A Party—By Statement [modified]: testimony has been introduced that defendant Kevin Radigan made a statement to James Sears on December 23, 2008 stating “I told you to fix that fence”. Defendant Kevin Radigan denies that he made such a statement. If you find that defendant Kevin Radigan made such a statement and that he thereby admitted that there existed a hole in the fence, you may consider that statement as evidence of the existence of a hole of fence.In deciding whether such a statement was made, you will apply the rules I have already given you about the evaluation of testimony. You may accept either party's version of what happened in whole or in part or you may accept a part of the versions given by both. In deciding how much weight you will give to the statement, if any, you can consider the words used, the person to whom the statement was made, the time that passed between the making of the statement and the occurrence, all of the other circumstances and conditions existing at the time and place, and the other facts in evidence, as well as the reasonableness of the defendant's explanation of the statement. You may consider the statement to be conclusive and binding on defendants, or you may ignore it altogether, or you may give it a weight between those two extremes, as you find proper under all the | General Instruction—Admission By A Party—By Statement [modified]: testimony has been introduced that defendant Kevin Radigan made a statement to James Sears on December 23, 2008 stating “I told you to fix that fence”. Defendant Kevin Radigan denies that he made such a statement. If you find that defendant Kevin Radigan made such a statement and that he thereby admitted that there existed a hole in the fence, you may consider that statement as evidence of the existence of a hole of fence.In deciding whether such a statement was made, you will apply the rules I have already given you about the evaluation of testimony. You may accept either party's version of what happened in whole or in part or you may accept a part of the versions given by both. In deciding how much weight you will give to the statement, if any, you can consider the words used, the person to whom the statement was made, the time that passed between the making of the statement and the occurrence, all of the other circumstances and conditions existing at the time and place, and the other facts in evidence, as well as the reasonableness of the defendant's explanation of the statement. You may consider the statement to be conclusive and binding on defendants, or you may ignore it altogether, or you may give it a weight between those two extremes, as you find proper under all the |
| circumstances.12. | circumstances.12. PJI 1:90 |
| General Instruction—Expert Witness [modified]: you will recall that the witnesses William Lafferty. M.D., and Paul Striker, M.D. testified concerning their qualifications as experts in the fields of podiatric surgery and plastic surgery and gave their opinion concerning issues in this case. When a case involves a matter of science or art or requires special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state his opinion for the information of the court and jury. The opinion(s) stated by the expert who testified before you was based on particular facts, as the expert obtained knowledge of them and testified to them before you, or as the attorney(s) who questioned the expert asked the expert to assume. You may reject an expert's opinion if you find the facts to be different from those which formed the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion. In other words, you are not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualifications in the field warrant and must be considered by you, but is not controlling upon your | General Instruction—Expert Witness [modified]: you will recall that the witnesses William Lafferty. M.D., and Paul Striker, M.D. testified concerning their qualifications as experts in the fields of podiatric surgery and plastic surgery and gave their opinion concerning issues in this case. When a case involves a matter of science or art or requires special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state his opinion for the information of the court and jury. The opinion(s) stated by the expert who testified before you was based on particular facts, as the expert obtained knowledge of them and testified to them before you, or as the attorney(s) who questioned the expert asked the expert to assume. You may reject an expert's opinion if you find the facts to be different from those which formed the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion. In other words, you are not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualifications in the field warrant and must be considered by you, but is not controlling upon your |
| judgment.13. . | judgment.13. PJI 1:91. |
| General Instruction—Interested Witness—Generally [modified]. The plaintiffs Brooke Michelle Goldstein and Robin Goldstein and the defendant Kevin Radigan testified before you. As parties to the action, all are interested witnesses.An interested witness is not necessarily less believable than a disinterested witness. The fact that he or she is interested in the outcome of the case does not mean that he or she has not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates whether or not the testimony has. Been influenced, intentionally or unintentionally, by his or her interest. You may, if you consider it proper under all of the circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted. However, you are not required to reject the testimony of such a witness, and may accept all or such part of his or her testimony as you find reliable and reject such part as you find unworthy of | General Instruction—Interested Witness—Generally [modified]. The plaintiffs Brooke Michelle Goldstein and Robin Goldstein and the defendant Kevin Radigan testified before you. As parties to the action, all are interested witnesses.An interested witness is not necessarily less believable than a disinterested witness. The fact that he or she is interested in the outcome of the case does not mean that he or she has not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates whether or not the testimony has. Been influenced, intentionally or unintentionally, by his or her interest. You may, if you consider it proper under all of the circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted. However, you are not required to reject the testimony of such a witness, and may accept all or such part of his or her testimony as you find reliable and reject such part as you find unworthy of |
| acceptance.14. | acceptance.14. PJI 1:92 |
| General Instruction—Interested Witness—Employee Of Party [modified]. The fact that the witnesses James Sears was and still is employed by defendant and the testimony you have heard of his relationship with his employer may be considered by you in deciding whether the testimony of any of these witnesses is in any way influenced by their employment relationship with | General Instruction—Interested Witness—Employee Of Party [modified]. The fact that the witnesses James Sears was and still is employed by defendant and the testimony you have heard of his relationship with his employer may be considered by you in deciding whether the testimony of any of these witnesses is in any way influenced by their employment relationship with |
| defendant.15. | defendant.15. PJI 1:94 |
| General Instruction—Use Of Pre-Trial Deposition Upon | General Instruction—Use Of Pre-Trial Deposition Upon |
| Trial16. | Trial16. PJI 1:97 |
| General Instruction—Special | General Instruction—Special |
| Verdicts17. | Verdicts17. PJI 2:70 |
| Proximate Cause—In | Proximate Cause—In |
| General18. Animals19. Damages—General20. | General18. PJI 2:220 Animals19. PJI 2:277 Damages—General20. PJI 2:280 |
| Damages—Personal Injury—Injury And Pain And | Damages—Personal Injury—Injury And Pain And |
| Suffering21. | Suffering21. PJI 2:280.2 |
| Damages—Personal Injury—Injury And Pain And Suffering [Supplemental | Damages—Personal Injury—Injury And Pain And Suffering [Supplemental |
| Instruction]22. | Instruction]22. PJI 2:281 |
| Damages—Personal Injury—Future—Permanence—Life Expectancy | Damages—Personal Injury—Future—Permanence—Life Expectancy |
| Tables23. | Tables23. PJI 2:284 |
| Damages—Personal Injury—Shock, Emotional Distress And Physical Consequences | Damages—Personal Injury—Shock, Emotional Distress And Physical Consequences |
| Thereof24. | Thereof24. PJI 2:285 |
| Damages—Personal Injury—Expenses Incurred25. PI 2:317 Damages—Derivative Action Re Child—Loss Of | Damages—Personal Injury—Expenses Incurred25. PI 2:317 Damages—Derivative Action Re Child—Loss Of |
| Services26. | Services26. PJI 1:24 |
| Return To | Return To |
| Courtroom27. | Courtroom27. PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict28. | Verdict28. PJI 1:29 |
| Alternate | Alternate |
| Jurors29. | Jurors29. PJI 1:28 |
| Conclusion [modified][emphasis in original]. I have now outlined the rules of law that apply to this case and the processes by which you weigh the evidence and decide the facts, in a few minutes you will retire to the jury room for your deliberations. Traditionally, juror no. 1 acts as foreperson. In order that your deliberations may proceed in an orderly fashion, you must have a foreperson, but of course, his or her vote is entitled to no greater weight than that of any other juror. Your function is to reach a fair decision from the law and the evidence—an important one. When you are in the jury room, listen to each other, and discuss the evidence and issues in the case among yourselves. It is the duty of each of you as jurors to consult with one another, and to deliberate with a view of reaching agreement on a verdict, if you can do so without violating your individual judgment and your conscience. While you should not surrender conscientious convictions of what the truth is and of the weight and effect of the evidence and while each of you must decide the case for yourself and not merely consent to the decision of your fellow jurors, you should examine the issues and the evidence before you with candor and frankness, and with proper respect and regard for the opinions of each other. It usually is not helpful for jurors to firmly announce their opinions without first listening to the thoughts of the other jurors. Deliberating involves listening to the views and opinions of your fellow jurors, as well as expressing your own and discussing them in a calm, dispassionate manner.You should try to keep your discussions free from emotions and personal criticism of other jurors. This usually is not helpful and only results in delaying a careful and reasoned discussion of the evidence in the case.I remind you that you are not to decide this case based on improper considerations such as which attorney you may like better or any feelings of sympathy you may have, or the race, religion, national origin, or physical appearance of any party, attorney, or witness. If you have any such feelings, it is now your obligation to put them aside, and decide this case in a fair, impartial, intelligent and reasonable manner.Remember in your deliberations that the dispute between the parties is, for them, a very important matter. They and the court rely upon you to give full and conscientious deliberation and consideration to the issues and evidence before you. By so doing, you carry out to the fullest your oaths as jurors to truly try the issues of this case and render a true verdict.C. Case Documents Available on Westlaw1.2011 WL 5439298, Witness List (June 22, 2011)2011 WL 5439311, Verdict Sheet (June 22, 2011)2009 WL 8498245, Verified | Conclusion [modified][emphasis in original]. I have now outlined the rules of law that apply to this case and the processes by which you weigh the evidence and decide the facts, in a few minutes you will retire to the jury room for your deliberations. Traditionally, juror no. 1 acts as foreperson. In order that your deliberations may proceed in an orderly fashion, you must have a foreperson, but of course, his or her vote is entitled to no greater weight than that of any other juror. Your function is to reach a fair decision from the law and the evidence—an important one. When you are in the jury room, listen to each other, and discuss the evidence and issues in the case among yourselves. It is the duty of each of you as jurors to consult with one another, and to deliberate with a view of reaching agreement on a verdict, if you can do so without violating your individual judgment and your conscience. While you should not surrender conscientious convictions of what the truth is and of the weight and effect of the evidence and while each of you must decide the case for yourself and not merely consent to the decision of your fellow jurors, you should examine the issues and the evidence before you with candor and frankness, and with proper respect and regard for the opinions of each other. It usually is not helpful for jurors to firmly announce their opinions without first listening to the thoughts of the other jurors. Deliberating involves listening to the views and opinions of your fellow jurors, as well as expressing your own and discussing them in a calm, dispassionate manner.You should try to keep your discussions free from emotions and personal criticism of other jurors. This usually is not helpful and only results in delaying a careful and reasoned discussion of the evidence in the case.I remind you that you are not to decide this case based on improper considerations such as which attorney you may like better or any feelings of sympathy you may have, or the race, religion, national origin, or physical appearance of any party, attorney, or witness. If you have any such feelings, it is now your obligation to put them aside, and decide this case in a fair, impartial, intelligent and reasonable manner.Remember in your deliberations that the dispute between the parties is, for them, a very important matter. They and the court rely upon you to give full and conscientious deliberation and consideration to the issues and evidence before you. By so doing, you carry out to the fullest your oaths as jurors to truly try the issues of this case and render a true verdict.C. Case Documents Available on Westlaw1.2011 WL 5439298, Witness List (June 22, 2011)2011 WL 5439311, Verdict Sheet (June 22, 2011)2009 WL 8498245, Verified |
| Amended |
| Complaint (July 30, 2009)2011 WL 5439300, Final Jury Charges (June 22, 2011)2.Sample Westlaw Query For Trial Court Documents in Similar Cases: dog /p vicious or violentD. Research References1.Key | Complaint (July 30, 2009)2011 WL 5439300, Final Jury Charges (June 22, 2011)2.Sample Westlaw Query For Trial Court Documents in Similar Cases: dog /p vicious or violentD. Research References1.Key |
| Numbers 2.Westlaw | NumbersAnimals 66.52.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:194Appendix 7A Outline of PJI Comment Regarding Injuries Caused by AnimalsMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following is the outline of the PJI Comment concerning liability relating to injuries caused by animals:AnimalsComment following | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:194Appendix 7A Outline of PJI Comment Regarding Injuries Caused by AnimalsMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following is the outline of the PJI Comment concerning liability relating to injuries caused by animals:AnimalsComment following |
| (1B , | PJI 2:220(1B NY PJI3d 2:220, |
| at 550 to 566 (2018))I.Injury by a Domestic AnimalII.Contributory Negligence, Comparative Negligence, Assumption of RiskIII.Vicious PropensityIV.DogsV.HorsesVI.Injury by a Wild AnimalChapter 8Products Liability/Breach of WarrantyA. Finding The Applicable Law and Instructions§ 8:1NY PJI TablesB. Illustrative Cases§ 8:2Products liability: NY Asbestos Litigation§ 8:3Products liability: NY Asbestos Litigation§ 8:4Products liability: Proposed Jury Instructions—In re: New York Rezulin Products Liability Litigation§ 8:5Products liability: forklift, one plaintiff, three defendants§ 8:6Products liability: Gasoline chemical; water well contamination [proposed federal instructions]Appendix 8A. Outline of PJI Comments for Products Liability/Breach of WarrantyKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 8:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Products Liability/Breach of Warranty, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Products Liability(NY PJI Volume 1A)[“****” = see Table of Contents for detailed PJI Comment]Introductory Statement ****A.Strict Liability | at 550 to 566 (2018))I.Injury by a Domestic AnimalII.Contributory Negligence, Comparative Negligence, Assumption of RiskIII.Vicious PropensityIV.DogsV.HorsesVI.Injury by a Wild AnimalChapter 8Products Liability/Breach of WarrantyA. Finding The Applicable Law and Instructions§ 8:1NY PJI TablesB. Illustrative Cases§ 8:2Products liability: NY Asbestos Litigation§ 8:3Products liability: NY Asbestos Litigation§ 8:4Products liability: Proposed Jury Instructions—In re: New York Rezulin Products Liability Litigation§ 8:5Products liability: forklift, one plaintiff, three defendants§ 8:6Products liability: Gasoline chemical; water well contamination [proposed federal instructions]Appendix 8A. Outline of PJI Comments for Products Liability/Breach of WarrantyKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 8:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Products Liability/Breach of Warranty, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Products Liability(NY PJI Volume 1A)[“****” = see Table of Contents for detailed PJI Comment]Introductory Statement ****A.Strict Liability |
| ( | (PJI 2:120 |
| to | to |
| )****B.Negligence ()1.Negligent | 2:120.2)****B.Negligence (PJI 2:125)1.Negligent |
| Manufacture | Manufacture |
| ()2.Maker | (PJI 2:125)2.Maker |
| of Assembled Product | of Assembled Product |
| ()3.Repairer | (PJI 2:125A)3.Repairer |
| of Product | of Product |
| ()4.Negligent | (PJI 2:125B)4.Negligent |
| Design | Design |
| ()C.Breach | (PJI 2:126)C.Breach |
| of Warranty1.Express Warranty (Manufacturer Liability) (PJI 2:140)2.Implied Warranty | of Warranty1.Express Warranty (Manufacturer Liability) (PJI 2:140)2.Implied Warranty |
| ()Historical | (PJI 2:142)Historical |
| Revision Notes:In 2008, | Revision Notes:In 2008, |
| PJI 2:120 |
| and | and |
| 2:125 |
| were revised; and | were revised; and |
| , , , | PJI 2:120.1, 2:120.2, 2:125A, 2:125B |
| were added.Former charges 2:126, 2:127, 2:128, 1:129,2:130, 2:140, 2:141, 2:141.1, and 2:141.2 have been deleted.In 2014, | were added.Former charges 2:126, 2:127, 2:128, 1:129,2:130, 2:140, 2:141, 2:141.1, and 2:141.2 have been deleted.In 2014, |
| PJI 2:125 |
| was retitled, “Negligent Manufacture,” and | was retitled, “Negligent Manufacture,” and |
| , | PJI 2:126, |
| “Products Liability—Negligent Design,” was added.B. Illustrative Cases§ 8:2 Products liability: NY Asbestos LitigationA. BackgroundType of Case: Products liabilityType of Injury: Mesotheleoma due to exposure to asbestos dustCase Name: In Re: New York Asbestos LitigationCourt: Supreme Court of New YorkJudge: Diane A. LebedeffDocket Number: 03/118793Verdict Date: March 26, 2003Outcome: Verdict for plaintiff of $46,000,000Brief Summary of Facts: Plaintiff claimed that the workplace at three powerhouses were unsafe and that the unsafe conditions were created because of the defendants' negligence. The unsafe condition which plaintiff claimed existed was an exposure to asbestos dust in the air of each power plant.B. Jury Instructions Given by the | “Products Liability—Negligent Design,” was added.B. Illustrative Cases§ 8:2 Products liability: NY Asbestos LitigationA. BackgroundType of Case: Products liabilityType of Injury: Mesotheleoma due to exposure to asbestos dustCase Name: In Re: New York Asbestos LitigationCourt: Supreme Court of New YorkJudge: Diane A. LebedeffDocket Number: 03/118793Verdict Date: March 26, 2003Outcome: Verdict for plaintiff of $46,000,000Brief Summary of Facts: Plaintiff claimed that the workplace at three powerhouses were unsafe and that the unsafe conditions were created because of the defendants' negligence. The unsafe condition which plaintiff claimed existed was an exposure to asbestos dust in the air of each power plant.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits3. . | Exhibits3. PJI 1:78. |
| General Instruction-Stipulation Of | General Instruction-Stipulation Of |
| Facts4. . | Facts4. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence5. . | Evidence5. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings6. . | Rulings6. PJI 1:27. |
| Exclude | Exclude |
| Sympathy7. . | Sympathy7. PJI 1:37. |
| Jury | Jury |
| Function8. . | Function8. PJI 1:38. |
| Court's Function (modified by excluding the following sentences: “You should not consider or accept any advice about the law from anyone else but me” and “Your verdict will be in the form of answers to written questions which I will submit to you” and by adding the following sentence: “Now, let me turn to more specific principles as you consider the evidence before | Court's Function (modified by excluding the following sentences: “You should not consider or accept any advice about the law from anyone else but me” and “Your verdict will be in the form of answers to written questions which I will submit to you” and by adding the following sentence: “Now, let me turn to more specific principles as you consider the evidence before |
| you”)9. . | you”)9. PJI 1:70. |
| General Instruction—Circumstantial Evidence (modified)You have heard much testimony. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence. Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.In reaching a conclusion based upon circumstantial evidence, the facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn. You may not guess or speculate.GIVE | General Instruction—Circumstantial Evidence (modified)You have heard much testimony. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence. Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.In reaching a conclusion based upon circumstantial evidence, the facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn. You may not guess or speculate.GIVE |
| EXAMPLE10. . | EXAMPLE10. PJI 1:8. |
| Weighing Testimony (modified)As you decide how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be applied. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the same tests that you apply in your deliberations.The items to be taken into consideration in determining the weight you will give to the testimony of a witness include: The interest or lack of interest of the witness in the outcome of the case; the bias or the prejudice of the witness, if there be any; the age, the appearance, the manner of the witness as the witness testified; the opportunity that the witness had to observe the facts about which he or she testified; the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the | Weighing Testimony (modified)As you decide how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be applied. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the same tests that you apply in your deliberations.The items to be taken into consideration in determining the weight you will give to the testimony of a witness include: The interest or lack of interest of the witness in the outcome of the case; the bias or the prejudice of the witness, if there be any; the age, the appearance, the manner of the witness as the witness testified; the opportunity that the witness had to observe the facts about which he or she testified; the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the |
| case.11. . | case.11. PJI 1:91. |
| General Instruction—Interested Witness—Generally (modified by adding “There are certain witnesses who are considered interested | General Instruction—Interested Witness—Generally (modified by adding “There are certain witnesses who are considered interested |
| witnesses.”)12. . | witnesses.”)12. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness13. . | Witness13. PJI 1:22. |
| Falsus in | Falsus in |
| Uno14. . | Uno14. PJI 1:97. |
| General Instruction—Special Verdicts (modified)I advised you that you will have a written list of questions, which counsel have also mentioned in their summations. Those written questions, called a jury interrogatory, will be distributed to you at approximately the midpoint of this charge and I will go over the questions with you.This case will be decided on the basis of the answers that you give to certain questions that will be submitted to you. The order of the questions will give you a road map to guide your deliberations.Each of the questions asked will call for a “Yes” or “No” answer, a percentage or a numerical figure. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to any question, but the same five persons need not agree on all of the answers. When five of you have agreed on any answer, the foreperson of the jury will write the answer in the space provided for each answer. After you have answered all the appropriate questions, each juror will sign the end of the interrogatory. When you have answered all the questions that require answers, report to the court officer.Do not draw any assumptions from the questions, from the wording of the questions, from the order of the questions, or from my instructions on them that the court gives any indication of what the answers should be.You are being presented with a number of different legal claims. The different sections of the interrogatory will make the differences | General Instruction—Special Verdicts (modified)I advised you that you will have a written list of questions, which counsel have also mentioned in their summations. Those written questions, called a jury interrogatory, will be distributed to you at approximately the midpoint of this charge and I will go over the questions with you.This case will be decided on the basis of the answers that you give to certain questions that will be submitted to you. The order of the questions will give you a road map to guide your deliberations.Each of the questions asked will call for a “Yes” or “No” answer, a percentage or a numerical figure. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to any question, but the same five persons need not agree on all of the answers. When five of you have agreed on any answer, the foreperson of the jury will write the answer in the space provided for each answer. After you have answered all the appropriate questions, each juror will sign the end of the interrogatory. When you have answered all the questions that require answers, report to the court officer.Do not draw any assumptions from the questions, from the wording of the questions, from the order of the questions, or from my instructions on them that the court gives any indication of what the answers should be.You are being presented with a number of different legal claims. The different sections of the interrogatory will make the differences |
| clear.15. . | clear.15. PJI 1:23. |
| Burden of Proof (modified by adding the following opening and closing paragraphs:)As you consider each claim, you must be aware of the party which bears the burden of proof. The reasons why one party or another has raised a claim against an entity does not concern you. Do not speculate why or draw any conclusion from the identity of the party raising the claim.On the claims against other entities, each defendant has the burden of proof. On such claims, you can find in favor of defendants' claims only if the evidence favoring such claim outweighs the evidence opposed to | Burden of Proof (modified by adding the following opening and closing paragraphs:)As you consider each claim, you must be aware of the party which bears the burden of proof. The reasons why one party or another has raised a claim against an entity does not concern you. Do not speculate why or draw any conclusion from the identity of the party raising the claim.On the claims against other entities, each defendant has the burden of proof. On such claims, you can find in favor of defendants' claims only if the evidence favoring such claim outweighs the evidence opposed to |
| it.16. . | it.16. PJI 2:70. |
| Proximate Cause—In General (modified)As you consider the claims against the various entities, in relation to each entity you will be asked whether the action or inaction of that entity was a substantial factor in bringing about plaintiff's mesotheleomia. The legal term used for this concept is proximate cause.An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.Where there are independent and separate wrongful acts or omissions of two or more parties, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.Even where the wrongful acts or omissions occurred at separate times, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.There may be more than one cause of an injury, but to be found a proximate cause, each must be a substantial factor in bringing about the injury. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to | Proximate Cause—In General (modified)As you consider the claims against the various entities, in relation to each entity you will be asked whether the action or inaction of that entity was a substantial factor in bringing about plaintiff's mesotheleomia. The legal term used for this concept is proximate cause.An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.Where there are independent and separate wrongful acts or omissions of two or more parties, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.Even where the wrongful acts or omissions occurred at separate times, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.There may be more than one cause of an injury, but to be found a proximate cause, each must be a substantial factor in bringing about the injury. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to |
| it.17. . | it.17. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict18. . | Verdict18. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to Work (modified)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Under this statute, an owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.In this action, Plaintiff claims that the workplace at three powerhouses—Astoria 6, Bowline, and Northport—were unsafe and that the unsafe conditions were created because of the defendants' negligence. The defendants deny these claims. In deciding these issues, you shall separately consider each workplace.In determining whether a particular defendant failed to provide a safe workplace, several factors must be considered. A site-owner is not liable on a claim merely because a plaintiff may have been exposed to asbestos at that site-owner's premises.First, you must find plaintiff was exposed to an unsafe condition. The unsafe condition which plaintiff urges existed was an exposure to asbestos dust in the air of each power plant. You heard argument as to whether asbestos was in the air at each site. You must determine the plaintiff has established by a fair preponderance of the credible evidence that there was such an unsafe asbestos exposure at each site to which plaintiff was exposed.Second, the legislature has determined that a site-owner is liable under this statute only if it exercises supervision and control over the operations which gave rise to the asbestos exposure. An owner which retains only general supervisory power or inspection privileges is not liable under this provision.As you consider whether defendant Con Edison exercised supervision and control over Astoria 6, you must also consider the actions of EBASCO as the actions of Con Edison. Similarly, as you consider whether defendant Con Edison exercised supervision and control over Bowline, you must also consider the actions of Orange & Rockland as the actions of Con Edison. The governing documents designate EBASCO and Orange & Rockland as agents of Con Edison and, accordingly, you are to consider their actions as fully chargeable to Con Edison.Third, if you find an unsafe condition, as well as supervision and control, you will next consider whether the unsafe condition resulted from the failure of the plant owner to use reasonable care in providing a safe workplace, or whether the unsafe condition resulted from a failure to use reasonable care to correct the condition after the defendant or its agent knew, or in the use of reasonable care, should have known of the unsafe condition.You may consider whether the site-owners knew or had reason to know that asbestos products were used and the site and whether the site-owners knew or had reason to know about the hazards of asbestos dust.As you consider what a site-owner had reason to know, this factor is weighed by the standard of what a reasonable person would know in the exercise of reasonable care under the circumstances then and there existing. In making your determination you will consider what information, if any, about the hazards of asbestos on construction sites was reasonably available to each site-owner at the time of the alleged exposure.If you decide that any of the defendants' workplaces had an unsafe condition, that such owner exercised supervision and control directly or through an agent, and that the unsafe condition resulted from the failure of the defendant owner or its agent to exercise reasonable care in making the workplace safe or or keeping it safe, you will find for the plaintiff for you will have determined that such defendant failed to provide a safe place to work.As you separately consider each site, if you find that the plaintiff has not established each of these three elements by a fair preponderance of the credible evidence, you will answer “no” for the plaintiff has not established a failure to provide a safe place to work within the statutory definition.If you find that there has been a failure to provide a safe place to work, you will next determine whether such failure was a substantial factor in causing plaintiff's injury.Author's Comment: See the Comment at 1B NY PJI3d 2:216A, at 361 to 457 (2018) for a comprehensive discussion of vicarious liability under Labor Law § 241(6), including separate treatment of many Industrial Code | Injured Employee—Statutory Negligence—Safe Place to Work (modified)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Under this statute, an owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.In this action, Plaintiff claims that the workplace at three powerhouses—Astoria 6, Bowline, and Northport—were unsafe and that the unsafe conditions were created because of the defendants' negligence. The defendants deny these claims. In deciding these issues, you shall separately consider each workplace.In determining whether a particular defendant failed to provide a safe workplace, several factors must be considered. A site-owner is not liable on a claim merely because a plaintiff may have been exposed to asbestos at that site-owner's premises.First, you must find plaintiff was exposed to an unsafe condition. The unsafe condition which plaintiff urges existed was an exposure to asbestos dust in the air of each power plant. You heard argument as to whether asbestos was in the air at each site. You must determine the plaintiff has established by a fair preponderance of the credible evidence that there was such an unsafe asbestos exposure at each site to which plaintiff was exposed.Second, the legislature has determined that a site-owner is liable under this statute only if it exercises supervision and control over the operations which gave rise to the asbestos exposure. An owner which retains only general supervisory power or inspection privileges is not liable under this provision.As you consider whether defendant Con Edison exercised supervision and control over Astoria 6, you must also consider the actions of EBASCO as the actions of Con Edison. Similarly, as you consider whether defendant Con Edison exercised supervision and control over Bowline, you must also consider the actions of Orange & Rockland as the actions of Con Edison. The governing documents designate EBASCO and Orange & Rockland as agents of Con Edison and, accordingly, you are to consider their actions as fully chargeable to Con Edison.Third, if you find an unsafe condition, as well as supervision and control, you will next consider whether the unsafe condition resulted from the failure of the plant owner to use reasonable care in providing a safe workplace, or whether the unsafe condition resulted from a failure to use reasonable care to correct the condition after the defendant or its agent knew, or in the use of reasonable care, should have known of the unsafe condition.You may consider whether the site-owners knew or had reason to know that asbestos products were used and the site and whether the site-owners knew or had reason to know about the hazards of asbestos dust.As you consider what a site-owner had reason to know, this factor is weighed by the standard of what a reasonable person would know in the exercise of reasonable care under the circumstances then and there existing. In making your determination you will consider what information, if any, about the hazards of asbestos on construction sites was reasonably available to each site-owner at the time of the alleged exposure.If you decide that any of the defendants' workplaces had an unsafe condition, that such owner exercised supervision and control directly or through an agent, and that the unsafe condition resulted from the failure of the defendant owner or its agent to exercise reasonable care in making the workplace safe or or keeping it safe, you will find for the plaintiff for you will have determined that such defendant failed to provide a safe place to work.As you separately consider each site, if you find that the plaintiff has not established each of these three elements by a fair preponderance of the credible evidence, you will answer “no” for the plaintiff has not established a failure to provide a safe place to work within the statutory definition.If you find that there has been a failure to provide a safe place to work, you will next determine whether such failure was a substantial factor in causing plaintiff's injury.Author's Comment: See the Comment at 1B NY PJI3d 2:216A, at 361 to 457 (2018) for a comprehensive discussion of vicarious liability under Labor Law § 241(6), including separate treatment of many Industrial Code |
| Regulations.19. . | Regulations.19. PJI 2:70. |
| Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” | Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” |
| language)20. . | language)20. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to Work (modified as to defendants PASNY, general contractors, and employers)Defendants ask you to consider that other entities also breached their statutory obligation to provide a safe place to work. One such defendant, PASNY which is shorthand for the Power Authority of the State of New York, purchased the Astoria 6 power plant on December 13, 1974, and Con Edison bears no responsbility for that plant after that date. The claim against PASNY is to be determined under the same principles 1 advised you apply to a site owner.Each defendant has the burden of proof to establish this claim and that a breach of this duty was a proximate cause of plaintiff's injury.The balance of these entities are general contractors and plaintiff's employers. Their duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that a general contractor and employer assure the workplace “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Such general contractors and employer owe a duty to workers to use reasonable care to make the workplaces that are under the control of the general contractor and employer are reasonably safe. The general contractor and employer who exercises control is required to correct an unsafe condition that is known to the general contractor or employer and its employees. The general contractor and employer who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The general contractor and employer is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the general contractor and employer or its employees should have known of its existence and corrected it.Defendants assert that the evidence establishes that each such general contractor and employer failed to provide a safe place to work and that such failure was a substantial factor in causing plaintiff's | Injured Employee—Statutory Negligence—Safe Place to Work (modified as to defendants PASNY, general contractors, and employers)Defendants ask you to consider that other entities also breached their statutory obligation to provide a safe place to work. One such defendant, PASNY which is shorthand for the Power Authority of the State of New York, purchased the Astoria 6 power plant on December 13, 1974, and Con Edison bears no responsbility for that plant after that date. The claim against PASNY is to be determined under the same principles 1 advised you apply to a site owner.Each defendant has the burden of proof to establish this claim and that a breach of this duty was a proximate cause of plaintiff's injury.The balance of these entities are general contractors and plaintiff's employers. Their duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that a general contractor and employer assure the workplace “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Such general contractors and employer owe a duty to workers to use reasonable care to make the workplaces that are under the control of the general contractor and employer are reasonably safe. The general contractor and employer who exercises control is required to correct an unsafe condition that is known to the general contractor or employer and its employees. The general contractor and employer who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The general contractor and employer is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the general contractor and employer or its employees should have known of its existence and corrected it.Defendants assert that the evidence establishes that each such general contractor and employer failed to provide a safe place to work and that such failure was a substantial factor in causing plaintiff's |
| disease.21. . | disease.21. PJI 2:70. |
| Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” | Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” |
| language)22. . | language)22. PJI 1:23. |
| Burden of Proof (modified as to contractors)Defendants also ask you to consider that other entities are also responsible for plaintiff's injury because such defendants were negligent. These claims are raised against contractors whose work is claimed to have exposed plaintiff to asbestos dust.Each defendant has the burden of proof to establish that any other entity was negligent and that their negligence was a proximate cause of plaintiff's | Burden of Proof (modified as to contractors)Defendants also ask you to consider that other entities are also responsible for plaintiff's injury because such defendants were negligent. These claims are raised against contractors whose work is claimed to have exposed plaintiff to asbestos dust.Each defendant has the burden of proof to establish that any other entity was negligent and that their negligence was a proximate cause of plaintiff's |
| injury.23. . | injury.23. PJI 2:10. |
| Common Law Standard Of Care—Negligence | Common Law Standard Of Care—Negligence |
| Defined—Generally24. . | Defined—Generally24. PJI 2:12. |
| Common Law Standard Of | Common Law Standard Of |
| Care—Foreseeability—Generally25. . | Care—Foreseeability—Generally25. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General26. . | General26. PJI 2:141. |
| Strict Liability and | Strict Liability and |
| . | PJI 2:135. |
| Products Liability—Manufacturer's Liability to Remote Consumer for Negligence—Duty to Warn (combined and modified)Defendants ask you to consider that the manufacturers and distributors of asbestos products should also be held responsible in this matter under principles of law described as product liability, which is governed by a different legal standard than a safe place to work claim or a negligence claim.Each defendant bears the burden of proving that the product was defective under this standard and that the defect was a substantial factor in producing plaintiff's injury.A manufacturer, wholesaler, distributor, retailer, processor of materials, maker of a component part who sells a product that is not reasonably safe—that is, if the product is so likely to be harmful to persons that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition—is liable for injury which results from use of the product when the product is used for its intended or reasonably foreseeable purpose.The manufacturer or distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer or distributor should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers of which it knows or which in the use of reasonable care should have been known and which the user of the product ordinarily would not discover. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances. You do not need to find that the particular products liability defendant actually knew of their product's potential for causing injury in order to determine that there was an obligation to warn.A manufacturer or distributor may be held liable for failing to warn concerning dangers in the use of the product, which become known after the product is manufactured or sold. A manufacturer or distributor has a duty to take reasonable steps to warn product users of dangers that are discovered after the product is manufactured or sold. If a warning is given, the warning must be commensurate with the degree of risk involved in the ordinary use of the product. The warning must sufficiently convey the risk of danger associated with the product. A warning is not sufficient when the seriousness of the risk requires more.A products liability defendant's duty to give adequate warning is nondelegable. That means that such defendants may not rely on others to issue an adequate warning. They cannot expect people outside the distribution chain to know of the dangers and/or to warn of them.A manufacturer or seller is held to the knowledge and skill of an expert and is conclusively presumed to possess all of the knowledge that is available to or could be possessed by an expert. If information was available concerning the dangers of defendant's asbestos-containing products, defendant is conclusively presumed to know that information.Further, a manufacturer or other products liability defendant must keep abreast of knowledge of the effect of its products as gained through research, testing, scientific literature and other available sources or methods. Such defendant is obligated to keep informed of scientific and technical discoveries in its particular field.There is a presumption that had a proper and adequate warning been given, it would have been heeded and the injury | Products Liability—Manufacturer's Liability to Remote Consumer for Negligence—Duty to Warn (combined and modified)Defendants ask you to consider that the manufacturers and distributors of asbestos products should also be held responsible in this matter under principles of law described as product liability, which is governed by a different legal standard than a safe place to work claim or a negligence claim.Each defendant bears the burden of proving that the product was defective under this standard and that the defect was a substantial factor in producing plaintiff's injury.A manufacturer, wholesaler, distributor, retailer, processor of materials, maker of a component part who sells a product that is not reasonably safe—that is, if the product is so likely to be harmful to persons that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition—is liable for injury which results from use of the product when the product is used for its intended or reasonably foreseeable purpose.The manufacturer or distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer or distributor should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers of which it knows or which in the use of reasonable care should have been known and which the user of the product ordinarily would not discover. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances. You do not need to find that the particular products liability defendant actually knew of their product's potential for causing injury in order to determine that there was an obligation to warn.A manufacturer or distributor may be held liable for failing to warn concerning dangers in the use of the product, which become known after the product is manufactured or sold. A manufacturer or distributor has a duty to take reasonable steps to warn product users of dangers that are discovered after the product is manufactured or sold. If a warning is given, the warning must be commensurate with the degree of risk involved in the ordinary use of the product. The warning must sufficiently convey the risk of danger associated with the product. A warning is not sufficient when the seriousness of the risk requires more.A products liability defendant's duty to give adequate warning is nondelegable. That means that such defendants may not rely on others to issue an adequate warning. They cannot expect people outside the distribution chain to know of the dangers and/or to warn of them.A manufacturer or seller is held to the knowledge and skill of an expert and is conclusively presumed to possess all of the knowledge that is available to or could be possessed by an expert. If information was available concerning the dangers of defendant's asbestos-containing products, defendant is conclusively presumed to know that information.Further, a manufacturer or other products liability defendant must keep abreast of knowledge of the effect of its products as gained through research, testing, scientific literature and other available sources or methods. Such defendant is obligated to keep informed of scientific and technical discoveries in its particular field.There is a presumption that had a proper and adequate warning been given, it would have been heeded and the injury |
| avoided.27. . | avoided.27. PJI 2:70. |
| Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” | Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” |
| language)28. . | language)28. PJI 2:275. |
| Comparative Fault—Apportionment Of Fault Between Defendants (modified)As to each party or entity you find breached a legal duty to plaintiff and as to which you found such breach was a substantial factor in causing plaintiff's injury, you must determine the degree of fault of each.Once you have considered all the facts and circumstances, you will decide what percentage of fault each bears for causing the plaintiff's injury. In allocating fault, you will be asked to assess the relative culpability of each entity and, as to those entities you find liable, to what extent each one failed to meet its duty. In considering the relative culpability, you may consider the strengths of the proofs in the entire record, regardless of the party which introduced the evidence.The total of these percentages must add up to 100 | Comparative Fault—Apportionment Of Fault Between Defendants (modified)As to each party or entity you find breached a legal duty to plaintiff and as to which you found such breach was a substantial factor in causing plaintiff's injury, you must determine the degree of fault of each.Once you have considered all the facts and circumstances, you will decide what percentage of fault each bears for causing the plaintiff's injury. In allocating fault, you will be asked to assess the relative culpability of each entity and, as to those entities you find liable, to what extent each one failed to meet its duty. In considering the relative culpability, you may consider the strengths of the proofs in the entire record, regardless of the party which introduced the evidence.The total of these percentages must add up to 100 |
| percent.29. . | percent.29. PJI 2:277. |
| Damages—General (modified to refer to “other entities” in the first paragraph and “one or both defendants and any other entity” in the second | Damages—General (modified to refer to “other entities” in the first paragraph and “one or both defendants and any other entity” in the second |
| paragraph)30. . | paragraph)30. PJI 2:280. |
| Damages—Personal Injury—Injury And Pain And Suffering (modified to add to the following:)You may take into consideration the effect that plaintiff's injuries have had on his ability to enjoy life. Loss of enjoyment of life includes the loss of ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of | Damages—Personal Injury—Injury And Pain And Suffering (modified to add to the following:)You may take into consideration the effect that plaintiff's injuries have had on his ability to enjoy life. Loss of enjoyment of life includes the loss of ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of |
| life.31. . | life.31. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence (modified)If you fix damages for pain and suffering, you will determine damages in relation to any of the plaintiff's injuries or disabilities that you find to be permanent and for future pain, suffering and disability and the loss of his ability to enjoy life.Such damages shall be for a period of time you determine based upon plaintiff's life expectancy. You shall consider the evidence you have heard concerning the condition of plaintiff's health and relevant medical testimony in deciding plaintiff's present life expectancy.If you make an award for this item of future damages, you must state the period of time over which the amount awarded is intended to provide | Damages—Personal Injury—Future—Permanence (modified)If you fix damages for pain and suffering, you will determine damages in relation to any of the plaintiff's injuries or disabilities that you find to be permanent and for future pain, suffering and disability and the loss of his ability to enjoy life.Such damages shall be for a period of time you determine based upon plaintiff's life expectancy. You shall consider the evidence you have heard concerning the condition of plaintiff's health and relevant medical testimony in deciding plaintiff's present life expectancy.If you make an award for this item of future damages, you must state the period of time over which the amount awarded is intended to provide |
| compensation.32. . | compensation.32. PJI 2:290. |
| Damages—Personal Injury—Loss Of Earnings—In General (modified)Plaintiff is entitled to be reimbursed for any earnings lost as a result of his mesothelomia from the time it limited his work to today. In addition, he is entitled to an award of anticipated lost earnings.Any award you make for earnings lost to date must not be the result of speculation; any award must be calculated based upon the period of time plaintiff disabled from working by the injuries and the amount that you find plaintiff would have earned had he not been disabled.Plaintiff is now 52 years of age and will be 53 years of age on April 10, 2003. The testimony before you is that he anticipated retirement at age 62. The parties have stipulated that lost earnings through such retirement date are $1,136,325.You are asked to determine whether or not plaintiff is to be compensated for lost wages. You will answer “yes” or | Damages—Personal Injury—Loss Of Earnings—In General (modified)Plaintiff is entitled to be reimbursed for any earnings lost as a result of his mesothelomia from the time it limited his work to today. In addition, he is entitled to an award of anticipated lost earnings.Any award you make for earnings lost to date must not be the result of speculation; any award must be calculated based upon the period of time plaintiff disabled from working by the injuries and the amount that you find plaintiff would have earned had he not been disabled.Plaintiff is now 52 years of age and will be 53 years of age on April 10, 2003. The testimony before you is that he anticipated retirement at age 62. The parties have stipulated that lost earnings through such retirement date are $1,136,325.You are asked to determine whether or not plaintiff is to be compensated for lost wages. You will answer “yes” or |
| “no.”33. . | “no.”33. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (modified to add “If you find that the injuries are permanent” at the beginning of the third | Damages—Personal Injury—Expenses Incurred (modified to add “If you find that the injuries are permanent” at the beginning of the third |
| sentence)34. . | sentence)34. PJI 2:301. |
| Damages—Personal Injury—Collateral Sources—Itemized Verdict (modified)Any dollar amounts you fix must represent the full amount awarded to plaintiff for that item of damage for that future period without reduction to present value.35. Recklessness (no directly correlating PJI)In this case plaintiff claims not only that Con Edison and LILCO also acted with reckless disregard for the safety of others. An entity acts with reckless disregard for the safely of others when it intentionally or with gross indifference to the rights or safety of others engages in conduct which makes it probable that injury will occur.This standard requires that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.Plaintiff has the burden of proving by a preponderance of the evidence that such defendants acted with reckless disregard for the safety of | Damages—Personal Injury—Collateral Sources—Itemized Verdict (modified)Any dollar amounts you fix must represent the full amount awarded to plaintiff for that item of damage for that future period without reduction to present value.35. Recklessness (no directly correlating PJI)In this case plaintiff claims not only that Con Edison and LILCO also acted with reckless disregard for the safety of others. An entity acts with reckless disregard for the safely of others when it intentionally or with gross indifference to the rights or safety of others engages in conduct which makes it probable that injury will occur.This standard requires that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.Plaintiff has the burden of proving by a preponderance of the evidence that such defendants acted with reckless disregard for the safety of |
| others.36. . | others.36. PJI 2:275.2. |
| Comparative Fault—Apportionment of Fault Between Defendants [Supplemental Instruction] (joint and several | Comparative Fault—Apportionment of Fault Between Defendants [Supplemental Instruction] (joint and several |
| liability)37. . Impartiality38. . | liability)37. PJI 1:36. Impartiality38. PJI 1:22. |
| Falsus in Uno (modified to use only the last sentence:)By the processes which I have described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept, and what weight you will give to | Falsus in Uno (modified to use only the last sentence:)By the processes which I have described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept, and what weight you will give to |
| it.39. . | it.39. PJI 1:24. |
| Return to Courtroom (modified to add “The foreperson should write the question on a piece of paper, date it, sign it, and then give it to the court | Return to Courtroom (modified to add “The foreperson should write the question on a piece of paper, date it, sign it, and then give it to the court |
| officer.”)40. . | officer.”)40. PJI 1:103. |
| General Instruction—Supplemental Charge—Note—Taking by Jurors (modified)Remember also, as I cautioned you, your notes are for your reference. If you have any question regarding the testimony, you should ask to have the testimony read back. If you do so, it would be of assistance if you could indicate the name of the witness and the subject matter of such testimony.41. 1:27. Exclude Sympathy (reiterated)42. 1:28. Conclusion (modified by adding the following:)While you are free to adopt any procedure you wish in relation to your deliberations, I do advise you that research on jury functioning indicates that jurors are most satisfied with their deliberative process when—taking any particular issue to be decided—each juror expresses his or her view in turn. Research indicates that using a procedure calling for a straw poll at the outset of consideration of each issue is reported to be a less satisfying procedure.Now, once I release you to deliberate, as long as six of you are in the jury room you can deliberate. If anyone leaves, deliberations should immediately cease.We have randomly selected six names. The alternates shall remain available for deliberation and I ask that you return to the courtroom after you claim your possessions from the jury room.C. Case Documents Available on Westlaw1.Jury Instruction, 2003 WL 21994779Appellate Opinion, In re New York City Asbestos Litigation, 41 A.D.3d 299, 838 N.Y.S.2d 76 (1st Dep't 2007) (unanimously affirming judgment for site owner on indemnification from contractor)Appellate Brief, 2006 WL 4591421Appellate Brief, | General Instruction—Supplemental Charge—Note—Taking by Jurors (modified)Remember also, as I cautioned you, your notes are for your reference. If you have any question regarding the testimony, you should ask to have the testimony read back. If you do so, it would be of assistance if you could indicate the name of the witness and the subject matter of such testimony.41. 1:27. Exclude Sympathy (reiterated)42. 1:28. Conclusion (modified by adding the following:)While you are free to adopt any procedure you wish in relation to your deliberations, I do advise you that research on jury functioning indicates that jurors are most satisfied with their deliberative process when—taking any particular issue to be decided—each juror expresses his or her view in turn. Research indicates that using a procedure calling for a straw poll at the outset of consideration of each issue is reported to be a less satisfying procedure.Now, once I release you to deliberate, as long as six of you are in the jury room you can deliberate. If anyone leaves, deliberations should immediately cease.We have randomly selected six names. The alternates shall remain available for deliberation and I ask that you return to the courtroom after you claim your possessions from the jury room.C. Case Documents Available on Westlaw1.Jury Instruction, 2003 WL 21994779Appellate Opinion, In re New York City Asbestos Litigation, 41 A.D.3d 299, 838 N.Y.S.2d 76 (1st Dep't 2007) (unanimously affirming judgment for site owner on indemnification from contractor)Appellate Brief, 2006 WL 4591421Appellate Brief, |
| 2.Sample | 2006 WL 45914192.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: “products liability”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: “products liability”D. Research References1.Key |
| Numbers | NumbersProducts Liability 420 |
| to | to |
| 441Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 8:3 Products | 7:356§ 8:3 Products |
| liability: NY Asbestos LitigationA. BackgroundType of Case: Product liability, wrongful deathType of Injury: Mesothelioma developed as a result of exposure to asbestos while working as an auto mechanicCase Name: In re NEW YORK CITY ASBESTOS LITIGATION. Patricia Brown, Individually and as Executrix for the Estate of Stephen G. Brown, Plaintiff, v. A.C. & S., Inc., et al., Defendants.Court: Supreme Court of New YorkJudge: Louis B. YorkDocket Number: 120595/00Verdict Date: February 8, 2002Outcome: Award of $53,500,000Brief Summary of Facts: Decedent worked as an auto mechanic from 1965 to 1968 and from 1972 to 1974 and was exposed to asbestos contained in brakes and clutches manufactured by Defendant. Plaintiff also claimed that decedent was exposed to asbestos while he was in the Coast Guard from 1972 to 1990, where he worked as a boiler room engineer and that boiler components manufactured by former Defendants also contained asbestos. Defendant denied that its automobile brakes and clutches contributed to decedent's cancer, and argued that they were not dangerous. It also contended that decedent was exposed to its brake linings for only 6 months, which was not enough time to cause asbestos-related diseases.B. Jury Instructions Given by the | liability: NY Asbestos LitigationA. BackgroundType of Case: Product liability, wrongful deathType of Injury: Mesothelioma developed as a result of exposure to asbestos while working as an auto mechanicCase Name: In re NEW YORK CITY ASBESTOS LITIGATION. Patricia Brown, Individually and as Executrix for the Estate of Stephen G. Brown, Plaintiff, v. A.C. & S., Inc., et al., Defendants.Court: Supreme Court of New YorkJudge: Louis B. YorkDocket Number: 120595/00Verdict Date: February 8, 2002Outcome: Award of $53,500,000Brief Summary of Facts: Decedent worked as an auto mechanic from 1965 to 1968 and from 1972 to 1974 and was exposed to asbestos contained in brakes and clutches manufactured by Defendant. Plaintiff also claimed that decedent was exposed to asbestos while he was in the Coast Guard from 1972 to 1990, where he worked as a boiler room engineer and that boiler components manufactured by former Defendants also contained asbestos. Defendant denied that its automobile brakes and clutches contributed to decedent's cancer, and argued that they were not dangerous. It also contended that decedent was exposed to its brake linings for only 6 months, which was not enough time to cause asbestos-related diseases.B. Jury Instructions Given by the |
| Court1. , . | Court1. PJI 1:20, 1:35. |
| Introduction (modified at transcript page 1 to add the following:)Ladies and gentlemen of the jury, at the very outset, I wish to commend all of you for your kind patience throughout the trial.You are aware of the fact that I have other duties in and from time to time I was required to interrupt these proceedings. I thank you for your indulgence, and the diligence which you have given to hearing all the testimony.The mere fact that a person brings a lawsuit as the plaintiffs (has) done does not give (her) the right to recover a verdict. The happening of an event or the sustaining of injuries does not, of itself, give one the right to recover damages.The law requires an aggrieved party to prove that the defendant(s) being sued (are) liable under the | Introduction (modified at transcript page 1 to add the following:)Ladies and gentlemen of the jury, at the very outset, I wish to commend all of you for your kind patience throughout the trial.You are aware of the fact that I have other duties in and from time to time I was required to interrupt these proceedings. I thank you for your indulgence, and the diligence which you have given to hearing all the testimony.The mere fact that a person brings a lawsuit as the plaintiffs (has) done does not give (her) the right to recover a verdict. The happening of an event or the sustaining of injuries does not, of itself, give one the right to recover damages.The law requires an aggrieved party to prove that the defendant(s) being sued (are) liable under the |
| law.2. . | law.2. PJI 1:21. |
| Review Principles Stated (modified by deleting “You are not to ask anyone else about the law. You should not consider or accept any advice about the law from anyone else but me” at transcript page | Review Principles Stated (modified by deleting “You are not to ask anyone else about the law. You should not consider or accept any advice about the law from anyone else but me” at transcript page |
| 2)3. . | 2)3. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different Issues (second paragraph modified at transcript page 4, but partially illegible in the available | General Instruction—Burden of Proof—When Burden Differs on Different Issues (second paragraph modified at transcript page 4, but partially illegible in the available |
| transcript)4. . | transcript)4. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally5. . | Witness—Generally5. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness6. . | Witness6. PJI 1:70. |
| General Instruction—Circumstantial | General Instruction—Circumstantial |
| Evidence7. . | Evidence7. PJI 1:25. |
| Consider Only Testimony and Exhibits (modified at transcript page 9 by adding a sentence referring to transcripts and videotapes, but writing is partly illegible in the available | Consider Only Testimony and Exhibits (modified at transcript page 9 by adding a sentence referring to transcripts and videotapes, but writing is partly illegible in the available |
| transcript)8. . | transcript)8. PJI 1:97. |
| General Instruction-Special | General Instruction-Special |
| Verdicts9. . | Verdicts9. PJI 1:22. |
| Falsus in Uno (modified by changing “unbelievable” to “unworthy of belief” at transcript page | Falsus in Uno (modified by changing “unbelievable” to “unworthy of belief” at transcript page |
| 11)10. . | 11)10. PJI 1:24. |
| Return to Courtroom (modified by adding the following at transcript page 12)The foreperson will write the question on a piece of paper, date it, sign it and then give it to the court officer who will be standing right outside the | Return to Courtroom (modified by adding the following at transcript page 12)The foreperson will write the question on a piece of paper, date it, sign it and then give it to the court officer who will be standing right outside the |
| room.11. . | room.11. PJI 1:27. |
| Exclude | Exclude |
| Sympathy12. . | Sympathy12. PJI 2:135. |
| Products Liability—Manufacturer's Liability to Remote Consumer for Negligence—Duty to Warn (modified at transcript page 14)The manufacturer and distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers known to it or which in the use of reasonable care it should have known and which the user of the product ordinarily would not discover. Had an adequate warning been given it is it is presumed that it would have been heeded and the injury avoided. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances.In the exercise of reasonable care the defendant manufacturers and sellers have a duty to know what an expert would know. That means they are presumed to be aware of the contemporary information available in published periodicals and clinical research regarding the dangers, if any, of their products containing asbestos. The warning must be commensurate with the degree of risk involved with the use of the product.If you determine that no warning by a particular defendant about the danger of asbestos was necessary or an adequate warning was given, you will find for the defendant on this issue. If you determine that no warning was given or an inadequate warning was given and the failure to do so was a substantial factor in causing plaintiff's mesothelioma, you will find for the plaintiff on this | Products Liability—Manufacturer's Liability to Remote Consumer for Negligence—Duty to Warn (modified at transcript page 14)The manufacturer and distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers known to it or which in the use of reasonable care it should have known and which the user of the product ordinarily would not discover. Had an adequate warning been given it is it is presumed that it would have been heeded and the injury avoided. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances.In the exercise of reasonable care the defendant manufacturers and sellers have a duty to know what an expert would know. That means they are presumed to be aware of the contemporary information available in published periodicals and clinical research regarding the dangers, if any, of their products containing asbestos. The warning must be commensurate with the degree of risk involved with the use of the product.If you determine that no warning by a particular defendant about the danger of asbestos was necessary or an adequate warning was given, you will find for the defendant on this issue. If you determine that no warning was given or an inadequate warning was given and the failure to do so was a substantial factor in causing plaintiff's mesothelioma, you will find for the plaintiff on this |
| issue.13. . | issue.13. PJI 2:71. |
| Proximate Cause-Concurrent Causes (modified by adding the following at transcript page 17)Here we are talking about acts Mr. Brown's exposure to asbestos. These exposures need not occur at the same time. Such exposures can occur at different times Each such exposure may be considered as a cause of plaintiff's illness if to the extent that it was a substantial contributing factor in causing plaintiff's | Proximate Cause-Concurrent Causes (modified by adding the following at transcript page 17)Here we are talking about acts Mr. Brown's exposure to asbestos. These exposures need not occur at the same time. Such exposures can occur at different times Each such exposure may be considered as a cause of plaintiff's illness if to the extent that it was a substantial contributing factor in causing plaintiff's |
| injuries.14. . | injuries.14. PJI 2:275C. |
| Liability Over-Apportionment of Fault—Effect of Release—Charge After Trial (modified at transcript page 18, changing the first paragraph to the following)There are defendants who did not appear before you in this action and there are other defendants who have appeared and then stopped appearing. Nevertheless those against whom evidence has been offered and admitted either by the plaintiff or the defendants will appear on your verdict sheets and you must determine whether any of those entities were at fault.Author's Comment: The PJI Comment explains that under GOL § 15-108(c), the release of one of several joint or concurrent tortfeasors produces several results: first, the released tortfeasor may not seek contribution from the other(s); second, the other(s) may not seek contribution from the released tortfeasor; and third, the plaintiff's recovery against the other(s) is to be reduced to the extent of: (i) the consideration paid for the release, (ii) the amount stipulated in the release, or (iii) the amount of the “released tortfeasor's equitable share of the damages,” whichever is greatest. Therefore, the nature and extent of the released tortfeasor's fault must be considered by the jury in order to fix the amount of the reduction, even though the released tortfeasor is not, or is no longer, a party to the action. 1B | Liability Over-Apportionment of Fault—Effect of Release—Charge After Trial (modified at transcript page 18, changing the first paragraph to the following)There are defendants who did not appear before you in this action and there are other defendants who have appeared and then stopped appearing. Nevertheless those against whom evidence has been offered and admitted either by the plaintiff or the defendants will appear on your verdict sheets and you must determine whether any of those entities were at fault.Author's Comment: The PJI Comment explains that under GOL § 15-108(c), the release of one of several joint or concurrent tortfeasors produces several results: first, the released tortfeasor may not seek contribution from the other(s); second, the other(s) may not seek contribution from the released tortfeasor; and third, the plaintiff's recovery against the other(s) is to be reduced to the extent of: (i) the consideration paid for the release, (ii) the amount stipulated in the release, or (iii) the amount of the “released tortfeasor's equitable share of the damages,” whichever is greatest. Therefore, the nature and extent of the released tortfeasor's fault must be considered by the jury in order to fix the amount of the reduction, even though the released tortfeasor is not, or is no longer, a party to the action. 1B |
| , | NY PJI3d 2:275A, |
| at 850 (2018). | at 850 (2018). |
| PJI 2:275A |
| is meant to be used pre-trial; | is meant to be used pre-trial; |
| PJI 2:275B |
| is used when release is effected during trial, and | is used when release is effected during trial, and |
| PJI 2:275C |
| is to be used in the final charge “[r]egardless of when the release occurs. . ..” 1B NY PJI 2:275A, at 850 | is to be used in the final charge “[r]egardless of when the release occurs. . ..” 1B NY PJI 2:275A, at 850 |
| (2018).15. . Damages—General16. . | (2018).15. PJI 2:277. Damages—General16. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and Suffering (modified by omitting definition of conscious pain and suffering at transcript page | Damages—Personal Injury—Injury and Pain and Suffering (modified by omitting definition of conscious pain and suffering at transcript page |
| 20)17. . | 20)17. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (modified at transcript page 21)In determining the amount, if any, to be awarded plaintiff for pain and suffering, you may take into consideration the effect that Mr. Brown injuries have had on his ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of life.If you find that Mr. Brown as a result of (his) injuries, suffered some loss of the ability to enjoy life you may take that loss into consideration in determining the amount to be awarded to plaintiff for pain and suffering from the onset of symptoms to | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental Instruction] (modified at transcript page 21)In determining the amount, if any, to be awarded plaintiff for pain and suffering, you may take into consideration the effect that Mr. Brown injuries have had on his ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of life.If you find that Mr. Brown as a result of (his) injuries, suffered some loss of the ability to enjoy life you may take that loss into consideration in determining the amount to be awarded to plaintiff for pain and suffering from the onset of symptoms to |
| death.18. . | death.18. PJI 2:315. |
| Damages—Derivative Action Re Spouse—Loss of Services (modified at transcript page 22, but partially illegible in the available | Damages—Derivative Action Re Spouse—Loss of Services (modified at transcript page 22, but partially illegible in the available |
| transcript)19. . | transcript)19. PJI 2:275.3. |
| Comparative Fault—Apportionment of Fault Between Defendants [Supplemental | Comparative Fault—Apportionment of Fault Between Defendants [Supplemental |
| Instruction]20. . | Instruction]20. PJI 2:275.4. |
| Comparative Fault—Apportionment of Fault Between Defendants [Supplemental Instruction]C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2002 WL 32117458Verdict and Settlement Summary, 2002 WL 32117460Trial Pleading, 2001 WL 34904872Trial Pleading, 2001 WL 34904873Trial Pleading, 2001 WL 34904871Trial Pleading, 2001 WL 34904870Trial Pleading, 2001 WL 34904876Trial Pleading, 2001 WL 34904874Trial Pleading, 2001 WL 34904875Expert Trial Transcript, 2003 WL 24303791Expert Trial Transcript, 2003 WL 24303792Partial Expert Testimony, 2003 WL 24306157Expert Trial Transcript, 2001 WL 34900785Expert Trial Transcript, 2001 WL 34900784Partial Expert Testimony, 2001 WL 34922202Partial Expert Testimony, 2001 WL 34922217Partial Expert Testimony, 2001 WL 34922216Partial Expert Testimony, 2001 WL 34922212Partial Expert Testimony, | Comparative Fault—Apportionment of Fault Between Defendants [Supplemental Instruction]C. Case Documents Available on Westlaw1.Verdict and Settlement Summary, 2002 WL 32117458Verdict and Settlement Summary, 2002 WL 32117460Trial Pleading, 2001 WL 34904872Trial Pleading, 2001 WL 34904873Trial Pleading, 2001 WL 34904871Trial Pleading, 2001 WL 34904870Trial Pleading, 2001 WL 34904876Trial Pleading, 2001 WL 34904874Trial Pleading, 2001 WL 34904875Expert Trial Transcript, 2003 WL 24303791Expert Trial Transcript, 2003 WL 24303792Partial Expert Testimony, 2003 WL 24306157Expert Trial Transcript, 2001 WL 34900785Expert Trial Transcript, 2001 WL 34900784Partial Expert Testimony, 2001 WL 34922202Partial Expert Testimony, 2001 WL 34922217Partial Expert Testimony, 2001 WL 34922216Partial Expert Testimony, 2001 WL 34922212Partial Expert Testimony, |
| Expert | 2001 WL 34922210Expert |
| Deposition, 2000 WL 34635183Expert Deposition, 2000 WL 34635184Partial Expert Testimony, 2000 WL 34635185Expert Report and Affidavit, 2000 WL 34635187Expert Report and Affidavit, 2000 WL 34635188Expert Report and Affidavit, 2000 WL 34635189Expert Report and Affidavit, 2000 WL 34635191Expert Report and Affidavit, 2000 WL 34635192Partial Expert Testimony, 2000 WL 34635194Trial Motion, Memorandum and Affidavit, 2004 WL 3770049Trial Motion, Memorandum and Affidavit, 2003 WL 24308959Trial Motion, Memorandum and Affidavit, 2001 WL 34904751Trial Motion, Memorandum and Affidavit, 2001 WL 34904753Trial Motion, Memorandum and Affidavit, 2001 WL 34904758Trial Motion, Memorandum and Affidavit, 2001 WL 34904756Trial Motion, Memorandum and Affidavit, 2001 WL 34904757Trial Motion, Memorandum and Affidavit, 2001 WL 34904763Trial Motion, Memorandum and Affidavit, 2001 WL 34904764Trial Motion, Memorandum and Affidavit, 2001 WL 34905012Trial Motion, Memorandum and Affidavit, 2001 WL 34905014Trial Motion, Memorandum and Affidavit, 2001 WL 34905015Trial Motion, Memorandum and Affidavit, 2001 WL 34905016Trial Motion, Memorandum and Affidavit, 2001 WL 34905017Trial Motion, Memorandum and Affidavit, 2001 WL 34904748Jury Instructions, 2002 WL 33008944Expert Trial Transcript, | Deposition, 2000 WL 34635183Expert Deposition, 2000 WL 34635184Partial Expert Testimony, 2000 WL 34635185Expert Report and Affidavit, 2000 WL 34635187Expert Report and Affidavit, 2000 WL 34635188Expert Report and Affidavit, 2000 WL 34635189Expert Report and Affidavit, 2000 WL 34635191Expert Report and Affidavit, 2000 WL 34635192Partial Expert Testimony, 2000 WL 34635194Trial Motion, Memorandum and Affidavit, 2004 WL 3770049Trial Motion, Memorandum and Affidavit, 2003 WL 24308959Trial Motion, Memorandum and Affidavit, 2001 WL 34904751Trial Motion, Memorandum and Affidavit, 2001 WL 34904753Trial Motion, Memorandum and Affidavit, 2001 WL 34904758Trial Motion, Memorandum and Affidavit, 2001 WL 34904756Trial Motion, Memorandum and Affidavit, 2001 WL 34904757Trial Motion, Memorandum and Affidavit, 2001 WL 34904763Trial Motion, Memorandum and Affidavit, 2001 WL 34904764Trial Motion, Memorandum and Affidavit, 2001 WL 34905012Trial Motion, Memorandum and Affidavit, 2001 WL 34905014Trial Motion, Memorandum and Affidavit, 2001 WL 34905015Trial Motion, Memorandum and Affidavit, 2001 WL 34905016Trial Motion, Memorandum and Affidavit, 2001 WL 34905017Trial Motion, Memorandum and Affidavit, 2001 WL 34904748Jury Instructions, 2002 WL 33008944Expert Trial Transcript, |
| 2.Sample | 1982 WL 8859942.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: “products liability”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: “products liability”D. Research References1.Key |
| Numbers | NumbersProducts Liability 420 |
| to | to |
| 441Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 8:4 Products | 7:356§ 8:4 Products |
| liability: Proposed Jury Instructions—In re: New York Rezulin Products Liability LitigationA. BackgroundType of Case: Negligence; strict product liability-failure to warn; breach of express and implied warranty; common law fraud; violation of General Business Law § 349Type of Injury: Liver problems from Rezulin useCase Name: In re: New York Rezulin Products Liability Litigation; Concepcion Morgado, Plaintiff, v. Warner-Lambert Co., Parke Davis & Co., and Pfizer, Inc., DefendantsCourt: Supreme Court of New YorkJudge: Helen E. FreedmanDocket Number: 403243/01Verdict Date: April 3, 2003Outcome: Award of $2,000,000Brief Summary of Facts: Plaintiff began using diabetes drug, Rezulin, and was subsequently diagnosed with jaundice. Plaintiff claimed that the drug's manufacturer did not inform the medical community or the FDA about the true risks of Rezulin's hepatoxicity. She claimed that the product's label portrayed serious side effects as an extremely rare occurrence. Plaintiff contended that the manufacturer also downplayed Rezulin's side effects in a series of letters to physicians, and that the company omitted material safety information from the physicians letters and the drug's label. Defendant contended that it disclosed all of Rezulin's associated risks, both to the medical community and the FDA. It claimed that the product's label contained sufficient risk disclosure, and that plaintiff's physician would not have altered plaintiff's prescription based on any additional disclosure.B. Jury Instructions1. Instructions Proposed by Plaintiff1. IntroductionMembers of the jury, we come now to that portion of the trial where you are instructed on the law applicable to the case and then retire for your final deliberations. You have now heard all the evidence introduced by the parties and through arguments of their attorneys you have learned the conclusions which each party believes should be drawn from the evidence presented to you.Authority: Adapted from | liability: Proposed Jury Instructions—In re: New York Rezulin Products Liability LitigationA. BackgroundType of Case: Negligence; strict product liability-failure to warn; breach of express and implied warranty; common law fraud; violation of General Business Law § 349Type of Injury: Liver problems from Rezulin useCase Name: In re: New York Rezulin Products Liability Litigation; Concepcion Morgado, Plaintiff, v. Warner-Lambert Co., Parke Davis & Co., and Pfizer, Inc., DefendantsCourt: Supreme Court of New YorkJudge: Helen E. FreedmanDocket Number: 403243/01Verdict Date: April 3, 2003Outcome: Award of $2,000,000Brief Summary of Facts: Plaintiff began using diabetes drug, Rezulin, and was subsequently diagnosed with jaundice. Plaintiff claimed that the drug's manufacturer did not inform the medical community or the FDA about the true risks of Rezulin's hepatoxicity. She claimed that the product's label portrayed serious side effects as an extremely rare occurrence. Plaintiff contended that the manufacturer also downplayed Rezulin's side effects in a series of letters to physicians, and that the company omitted material safety information from the physicians letters and the drug's label. Defendant contended that it disclosed all of Rezulin's associated risks, both to the medical community and the FDA. It claimed that the product's label contained sufficient risk disclosure, and that plaintiff's physician would not have altered plaintiff's prescription based on any additional disclosure.B. Jury Instructions1. Instructions Proposed by Plaintiff1. IntroductionMembers of the jury, we come now to that portion of the trial where you are instructed on the law applicable to the case and then retire for your final deliberations. You have now heard all the evidence introduced by the parties and through arguments of their attorneys you have learned the conclusions which each party believes should be drawn from the evidence presented to you.Authority: Adapted from |
| 2. Consider | PJI 1:202. Consider |
| Only Testimony and ExhibitsIn deciding this case, you may consider only the exhibits which have been admitted in evidence and the testimony of the witnesses as you have heard it in this courtroom either from the witness stand or from deposition testimony, whether by video tape or testimony that has been read into evidence.Under our rules of practice an examination before trial is taken under oath and is entitled to equal consideration by you notwithstanding the fact that it was taken before the trial and outside the courtroom.However, arguments, remarks, and summation of the attorneys are not evidence nor is anything that I now say or may have said with regard to the facts, evidence.Authority: Adapted from | Only Testimony and ExhibitsIn deciding this case, you may consider only the exhibits which have been admitted in evidence and the testimony of the witnesses as you have heard it in this courtroom either from the witness stand or from deposition testimony, whether by video tape or testimony that has been read into evidence.Under our rules of practice an examination before trial is taken under oath and is entitled to equal consideration by you notwithstanding the fact that it was taken before the trial and outside the courtroom.However, arguments, remarks, and summation of the attorneys are not evidence nor is anything that I now say or may have said with regard to the facts, evidence.Authority: Adapted from |
| 3. Consider | PJI 1:253. Consider |
| Only Competent EvidenceAt times during the trial I have sustained objections to questions asked without allowing the witness to answer or where an answer was made, instructed that-it be stricken from the record and that you disregard it and dismiss it from your minds. You may not draw any inference or conclusions from an unanswered question nor may you consider testimony which has been stricken from the record in reaching your decision. The law requires that your decision be made solely upon the evidence before you. Such items as I have excluded from your consideration were excluded because they were not legally admissible.Authority: Adapted from | Only Competent EvidenceAt times during the trial I have sustained objections to questions asked without allowing the witness to answer or where an answer was made, instructed that-it be stricken from the record and that you disregard it and dismiss it from your minds. You may not draw any inference or conclusions from an unanswered question nor may you consider testimony which has been stricken from the record in reaching your decision. The law requires that your decision be made solely upon the evidence before you. Such items as I have excluded from your consideration were excluded because they were not legally admissible.Authority: Adapted from |
| 4. SympathyIn | PJI 1:404. SympathyIn |
| reaching your verdict you are not to be affected by sympathy for any of the parties, what the reaction of the parties or of the public to your verdict may be, whether it will please or displease anyone, be popular or unpopular or, indeed, any consideration outside the case as it has been presented to you in this courtroom. You should consider only the evidence-both the testimony and the exhibits-find the facts from what you consider to be the believable evidence, and apply the law as I now give it to you. Your verdict will be determined by the conclusion you reach, no matter whom the verdict helps or hurts.Authority: Adapted from | reaching your verdict you are not to be affected by sympathy for any of the parties, what the reaction of the parties or of the public to your verdict may be, whether it will please or displease anyone, be popular or unpopular or, indeed, any consideration outside the case as it has been presented to you in this courtroom. You should consider only the evidence-both the testimony and the exhibits-find the facts from what you consider to be the believable evidence, and apply the law as I now give it to you. Your verdict will be determined by the conclusion you reach, no matter whom the verdict helps or hurts.Authority: Adapted from |
| 5. Jury | PJI 1:275. Jury |
| FunctionAs the jurors, your fundamental duty is to decide, from all the evidence that you have heard and the exhibits that have been submitted, what the facts are. You are the sole, exclusive judges of the facts. In that field you are supreme and neither I nor anyone else may invade your province. As the sole judges of the facts, you must decide which of the witnesses you believed, what portion of their testimony you accepted, and what weight you give to it.Authority: Adapted from | FunctionAs the jurors, your fundamental duty is to decide, from all the evidence that you have heard and the exhibits that have been submitted, what the facts are. You are the sole, exclusive judges of the facts. In that field you are supreme and neither I nor anyone else may invade your province. As the sole judges of the facts, you must decide which of the witnesses you believed, what portion of their testimony you accepted, and what weight you give to it.Authority: Adapted from |
| 6. Court's | PJI 1:376. Court's |
| FunctionOn the other hand, and with equal emphasis, I charge you that you are required to accept the law as it is given to you in this charge and in any instructions that I have given to you during the course of the trial. Whether you agree with the law as given to you by me or not, you are bound by it. You are not to ask anyone else about the law.The process by which you arrive at a verdict is first, to decide from all of the evidence and the exhibits, what the facts are, and second, to apply the law as I give it to you, to the facts as you have decided them to be. The conclusion thus reached will be your verdict.Authority: Adapted from | FunctionOn the other hand, and with equal emphasis, I charge you that you are required to accept the law as it is given to you in this charge and in any instructions that I have given to you during the course of the trial. Whether you agree with the law as given to you by me or not, you are bound by it. You are not to ask anyone else about the law.The process by which you arrive at a verdict is first, to decide from all of the evidence and the exhibits, what the facts are, and second, to apply the law as I give it to you, to the facts as you have decided them to be. The conclusion thus reached will be your verdict.Authority: Adapted from |
| 7. Circumstantial | PJI 1:387. Circumstantial |
| EvidenceYou have heard much testimony. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence. Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.Authority: Adapted from | EvidenceYou have heard much testimony. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence. Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.Authority: Adapted from |
| 8. . | PJI 1:708. PJI 1:21. |
| Review Principles Stated (modified without indicating particular PJI)WitnessesAs you decide how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be applied. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the same tests that you apply in your deliberations.The items to be taken into consideration in determining the weight you will give to the testimony of a witness include: The interest or lack of interest of the witness in the outcome of the case; the bias or the prejudice of the witness, if there be any; the age, the appearance, the manner of the witness as the witness testified; the opportunity that the witness had to observe the facts about which he or she testified; the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the | Review Principles Stated (modified without indicating particular PJI)WitnessesAs you decide how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be applied. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the same tests that you apply in your deliberations.The items to be taken into consideration in determining the weight you will give to the testimony of a witness include: The interest or lack of interest of the witness in the outcome of the case; the bias or the prejudice of the witness, if there be any; the age, the appearance, the manner of the witness as the witness testified; the opportunity that the witness had to observe the facts about which he or she testified; the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the |
| case.9. . | case.9. PJI 1:91. |
| General Instruction—Interested Witness—Generally (modified without indicating particular PJI)Interested WitnessesThere are certain witnesses who are considered interested witnesses. An interested witness is not necessarily less believable than a disinterested witness. The fact that he or she is interested in the outcome of the case does not mean that he or she has not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates, whether or not the testimony has been influenced intentionally or unintentionally by his or her interest in the case.You may, if you consider it proper under all of the circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted; however, you are not required to reject the testimony of such a witness, and may accept all or such part of his or her testimony as you find reliable, and reject such part as you find unworthy of acceptance.10. Expert WitnessYou will recall that the various paid expert witnesses testified concerning their qualifications as experts in their fields and gave opinions concerning the issues in this case.When a case involves a matter of science or art or requires special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state an opinion for the information of the court and jury. The opinion stated by each expert who testified before you was based on particular facts, as the expert obtained knowledge of them and testified to them before you, or as the attorneys who questioned the expert asked the expert to assume.You may reject the expert's opinion if you find the facts to be different from those which formed the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion. In other words, you are not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualifications in the field warrant and must be considered by you, but is not controlling upon your judgment.Authority: Adapted from | General Instruction—Interested Witness—Generally (modified without indicating particular PJI)Interested WitnessesThere are certain witnesses who are considered interested witnesses. An interested witness is not necessarily less believable than a disinterested witness. The fact that he or she is interested in the outcome of the case does not mean that he or she has not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates, whether or not the testimony has been influenced intentionally or unintentionally by his or her interest in the case.You may, if you consider it proper under all of the circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted; however, you are not required to reject the testimony of such a witness, and may accept all or such part of his or her testimony as you find reliable, and reject such part as you find unworthy of acceptance.10. Expert WitnessYou will recall that the various paid expert witnesses testified concerning their qualifications as experts in their fields and gave opinions concerning the issues in this case.When a case involves a matter of science or art or requires special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state an opinion for the information of the court and jury. The opinion stated by each expert who testified before you was based on particular facts, as the expert obtained knowledge of them and testified to them before you, or as the attorneys who questioned the expert asked the expert to assume.You may reject the expert's opinion if you find the facts to be different from those which formed the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion. In other words, you are not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualifications in the field warrant and must be considered by you, but is not controlling upon your judgment.Authority: Adapted from |
| 11. Falsus | PJI 1:9011. Falsus |
| in UnoAs to any witness, if you find that such witness has willfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.Authority: Adapted from | in UnoAs to any witness, if you find that such witness has willfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.Authority: Adapted from |
| 12. Burden | PJI 1:2212. Burden |
| of ProofAs you consider each claim, you must be aware of the party which bears the burden of proof.On the primary claim raised by plaintiff in relation to defendants, the burden of proof rests on the plaintiff. That means that it must be established by a fair preponderance of the credible evidence that the claim plaintiff makes is true. The credible evidence means the testimony or exhibits that you find to be worthy to be believed. A preponderance of the evidence means the greater part of such evidence. One side need only tip the scale slightly in their favor in order to win their argument. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds.The law requires that in order for the plaintiff to prevail on a claim, the evidence that supports his claim must appeal to you as more nearly representing what took place than the evidence opposed to his claim. If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, then you must decide the question in favor of the defendant. It is only if the evidence favoring the plaintiff's claim outweighs the evidence opposed to it that you can find in favor of plaintiff.Authority: Adapted from | of ProofAs you consider each claim, you must be aware of the party which bears the burden of proof.On the primary claim raised by plaintiff in relation to defendants, the burden of proof rests on the plaintiff. That means that it must be established by a fair preponderance of the credible evidence that the claim plaintiff makes is true. The credible evidence means the testimony or exhibits that you find to be worthy to be believed. A preponderance of the evidence means the greater part of such evidence. One side need only tip the scale slightly in their favor in order to win their argument. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds.The law requires that in order for the plaintiff to prevail on a claim, the evidence that supports his claim must appeal to you as more nearly representing what took place than the evidence opposed to his claim. If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, then you must decide the question in favor of the defendant. It is only if the evidence favoring the plaintiff's claim outweighs the evidence opposed to it that you can find in favor of plaintiff.Authority: Adapted from |
| 13. NegligenceNegligence | PJI 1:2313. NegligenceNegligence |
| is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person or company would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.Authority: Adapted from | is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person or company would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.Authority: Adapted from |
| Negligence | PJI 2:10Negligence |
| requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A company is only responsible for the results of its conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must not be merely possible, but probable.There is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in light of what could have been foreseen.Authority: Adapted from | requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A company is only responsible for the results of its conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must not be merely possible, but probable.There is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in light of what could have been foreseen.Authority: Adapted from |
| 14. Product | PJI 2:1214. Product |
| LiabilityThe manufacturer or distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer or distributor should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers of which it knows or which in the use of reasonable care should have been known and which the user of the product ordinarily would not discover. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances.Authority: Adapted from | LiabilityThe manufacturer or distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer or distributor should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers of which it knows or which in the use of reasonable care should have been known and which the user of the product ordinarily would not discover. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances.Authority: Adapted from |
| Author's | PJI 2:135Author's |
| Comment: The pertinent instruction is currently set forth as part of | Comment: The pertinent instruction is currently set forth as part of |
| .A | PJI 2:120.A |
| manufacturer or distributor may be held liable for failing to warn concerning dangers in the use of the product, which become known after the product is manufactured or sold. A manufacturer or distributor has a duty to take reasonable steps to warn product users of dangers that are discovered after the product is manufactured or sold. If a warning is given, the warning must be commensurate with the degree of risk involved in the ordinary use of the product. The warning must sufficiently convey the risk of danger associated with the product. A warning is not sufficient when the seriousness of the risk requires more.Authority: | manufacturer or distributor may be held liable for failing to warn concerning dangers in the use of the product, which become known after the product is manufactured or sold. A manufacturer or distributor has a duty to take reasonable steps to warn product users of dangers that are discovered after the product is manufactured or sold. If a warning is given, the warning must be commensurate with the degree of risk involved in the ordinary use of the product. The warning must sufficiently convey the risk of danger associated with the product. A warning is not sufficient when the seriousness of the risk requires more.Authority: |
| Martin v. Hacker, 83 N.Y.2d 1, 607 |
| N.Y.S.2d 598A prescription drug manufacturer discharges its duty to warn by warning the medical community of those risks of which the manufacturer has, or should in the exercise of due diligence have, knowledge.Authority: Adapted from | N.Y.S.2d 598A prescription drug manufacturer discharges its duty to warn by warning the medical community of those risks of which the manufacturer has, or should in the exercise of due diligence have, knowledge.Authority: Adapted from |
| ; 15. Learned | PJI 2:141; Martin v. Hacker15. Learned |
| Intermediary DoctrineA prescription drug manufacturer discharges its duty to warn when it adequately warns the medical community of those risks of which the manufacturer has, or should in the exercise of due diligence have, knowledge. The factors to be considered in determining whether a warning may be held adequate include whether the warning is accurate, clear, consistent on its face, and whether it portrays with sufficient intensity the risk involved in taking the drug. For a warning to be accurate it must be correct, fully descriptive and complete, and it must convey updated information as to all of the drug's known side effects. Clarity, in the context of a drug warning means that the language of the warning is direct, unequivocal and sufficiently forceful to convey the risk. A warning for a prescription drug must provide sufficient information to that category of prescribing physicians who may be expected to have the least knowledge and experience with the drug.Authority: Adapted from | Intermediary DoctrineA prescription drug manufacturer discharges its duty to warn when it adequately warns the medical community of those risks of which the manufacturer has, or should in the exercise of due diligence have, knowledge. The factors to be considered in determining whether a warning may be held adequate include whether the warning is accurate, clear, consistent on its face, and whether it portrays with sufficient intensity the risk involved in taking the drug. For a warning to be accurate it must be correct, fully descriptive and complete, and it must convey updated information as to all of the drug's known side effects. Clarity, in the context of a drug warning means that the language of the warning is direct, unequivocal and sufficiently forceful to convey the risk. A warning for a prescription drug must provide sufficient information to that category of prescribing physicians who may be expected to have the least knowledge and experience with the drug.Authority: Adapted from |
| , | PJI 2:141, |
| comments at 672; Martin v. Hacker, 83 N.Y.2d 1, 607 N.Y.S.2d 598Author's Comment: | comments at 672; Martin v. Hacker, 83 N.Y.2d 1, 607 N.Y.S.2d 598Author's Comment: |
| Martin v. Hacker |
| and other leading cases are extensively discussed in the Comment on strict liability at 1A | and other leading cases are extensively discussed in the Comment on strict liability at 1A |
| , | NY PJI3d 2:120, |
| at 751 to 822 (2018).16. Proximate CauseAn act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. That a failure to warn was a proximate cause of an injury means that if adequate warnings had been provided, the injury would not have occurred.Authority: Adapted from | at 751 to 822 (2018).16. Proximate CauseAn act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. That a failure to warn was a proximate cause of an injury means that if adequate warnings had been provided, the injury would not have occurred.Authority: Adapted from |
| ; | PJI 2:70; PJI |
| 2:141 (p. 674)There is a presumption that had a proper and adequate warning been given, it would have been heeded and the injury avoided.Authority: Hoffman-Rattet v. Ortho Pharm. Corp., 135 Misc.2d 750, 757, 516 N.Y.S.2d 856, 861 (N.Y. Sup. 1987)17. Breach of Express WarrantyA manufacturer which in advertising or labeling its product represents the quality to the public in such a way as to induce purchase or use, thereby makes an express warranty that it will conform to the representation. If the product does not conform to the representation, the warranty is breached.Mrs. Morgado claims that in defendants' label and advertisements, defendants represented that Rezulin was a safe and effective drug for the treatment of diabetes, and that Rezulin did not conform to the representation in that it was more dangerous and less effective than was stated. If you find that the representation was made and Rezulin did not conform, you will find that defendants breached an express warranty.In such case you will find for plaintiff on this issue provided that you additionally find the following: (1) that at the time of her injury Mrs. Morgado was using Rezulin for the purpose and in the manner intended, (2) that Mrs. Morgado or her physician, by the use of reasonable care, would not have both discovered the breach and realized its danger, and (3) that the breach of warranty was a substantial factor in bringing about Mrs. Morgado's injury.Authority: Adapted from | 2:141 (p. 674)There is a presumption that had a proper and adequate warning been given, it would have been heeded and the injury avoided.Authority: Hoffman-Rattet v. Ortho Pharm. Corp., 135 Misc.2d 750, 757, 516 N.Y.S.2d 856, 861 (N.Y. Sup. 1987)17. Breach of Express WarrantyA manufacturer which in advertising or labeling its product represents the quality to the public in such a way as to induce purchase or use, thereby makes an express warranty that it will conform to the representation. If the product does not conform to the representation, the warranty is breached.Mrs. Morgado claims that in defendants' label and advertisements, defendants represented that Rezulin was a safe and effective drug for the treatment of diabetes, and that Rezulin did not conform to the representation in that it was more dangerous and less effective than was stated. If you find that the representation was made and Rezulin did not conform, you will find that defendants breached an express warranty.In such case you will find for plaintiff on this issue provided that you additionally find the following: (1) that at the time of her injury Mrs. Morgado was using Rezulin for the purpose and in the manner intended, (2) that Mrs. Morgado or her physician, by the use of reasonable care, would not have both discovered the breach and realized its danger, and (3) that the breach of warranty was a substantial factor in bringing about Mrs. Morgado's injury.Authority: Adapted from |
| Author's | PJI 2:140Author's |
| Comment: It is recommended practice (preferred by judges) in submitting charge requests to show precisely how a pattern charge has been proposed to be modified, and why (with appropriate citation to authority). In this instance, the charge request omits the last sentence of | Comment: It is recommended practice (preferred by judges) in submitting charge requests to show precisely how a pattern charge has been proposed to be modified, and why (with appropriate citation to authority). In this instance, the charge request omits the last sentence of |
| : | PJI 2:140: |
| “If you find that plaintiff misused [state product], or knew or by the use of reasonable care would have discovered the breach and realized its danger, or that the breach was not a substantial factor in bringing about plaintiff's injury, you will find for defendant on this issue.”18. Breach of Implied WarrantyThe law implies, a warranty by a manufacturer that places a product on the market that it is reasonably fit for the ordinary purposes for which such product is used. If the product is not reasonably fit to be used for its ordinary purposes for which such product is used, the warranty is breached.Mrs. Morgado claims that Rezulin was not fit for its ordinary purpose because it had an unacceptable risk of side effects. If you find that Rezulin was fit for its ordinary purposes, you will find that there was no breach of warranty, and you will find for defendants on this issue. If you find that Rezulin was not fit for its ordinary purposes, you will find that defendants breached their implied warranty.In order to find for Mrs. Morgado on this issue you must also find defendants' failure to warn was the proximate cause of Mrs. Morgado's injury.Authority: Adapted from | “If you find that plaintiff misused [state product], or knew or by the use of reasonable care would have discovered the breach and realized its danger, or that the breach was not a substantial factor in bringing about plaintiff's injury, you will find for defendant on this issue.”18. Breach of Implied WarrantyThe law implies, a warranty by a manufacturer that places a product on the market that it is reasonably fit for the ordinary purposes for which such product is used. If the product is not reasonably fit to be used for its ordinary purposes for which such product is used, the warranty is breached.Mrs. Morgado claims that Rezulin was not fit for its ordinary purpose because it had an unacceptable risk of side effects. If you find that Rezulin was fit for its ordinary purposes, you will find that there was no breach of warranty, and you will find for defendants on this issue. If you find that Rezulin was not fit for its ordinary purposes, you will find that defendants breached their implied warranty.In order to find for Mrs. Morgado on this issue you must also find defendants' failure to warn was the proximate cause of Mrs. Morgado's injury.Authority: Adapted from |
| 19. General | PJI 2:14219. General |
| Business Law § 349In order to prevail on her claim, Mrs. Morgado must establish: (1) that defendants' Rezulin label and advertisements were consumer-oriented, (2) that defendants' Rezulin label and advertisements were deceptive in a material way, and (3) that Mrs. Morgado suffered injuries as a result of the deceptive act. It is not required that Mrs. Morgado relied on defendants' label or advertisement.If you find that defendants are liable under General Business Law § 349, you may award Mrs. Morgado her actual damages or $50, whichever is greater.Authority: GBL § 349; Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 895 (2000)Author's Comment: For a discussion of Section 349 of the General Business Law, see 2A | Business Law § 349In order to prevail on her claim, Mrs. Morgado must establish: (1) that defendants' Rezulin label and advertisements were consumer-oriented, (2) that defendants' Rezulin label and advertisements were deceptive in a material way, and (3) that Mrs. Morgado suffered injuries as a result of the deceptive act. It is not required that Mrs. Morgado relied on defendants' label or advertisement.If you find that defendants are liable under General Business Law § 349, you may award Mrs. Morgado her actual damages or $50, whichever is greater.Authority: GBL § 349; Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 895 (2000)Author's Comment: For a discussion of Section 349 of the General Business Law, see 2A |
| , | NY PJI2d 3:20, |
| at 219 to 229 (2018).20. FraudConcepcion Morgado also seeks to recover based on a claim of fraud, claiming that defendants misrepresented and/or wrongfully withheld material information relating to Rezulin.As I have explained earlier, the plaintiff has the burden of proof with respect to each element of her claims. For all of the claims that I have instructed you on so far, plaintiff's burden has been to establish each element by a “preponderance of the evidence,” and I instructed earlier what that means. In order to find in favor of Mrs. Morgado on a claim of fraud, however, she must establish each element by “clear and convincing evidence,” which is a higher standard of proof than “preponderance of the evidence.”“Clear and convincing evidence” means evidence that satisfies you that there is a high degree of probability that there was fraud as I will define it for you shortly. Thus, to decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff's favor. A party who must prove her case by a preponderance of the evidence only need satisfy you that the evidence supporting her case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what she claims is what actually happened.Authority: Adapted from | at 219 to 229 (2018).20. FraudConcepcion Morgado also seeks to recover based on a claim of fraud, claiming that defendants misrepresented and/or wrongfully withheld material information relating to Rezulin.As I have explained earlier, the plaintiff has the burden of proof with respect to each element of her claims. For all of the claims that I have instructed you on so far, plaintiff's burden has been to establish each element by a “preponderance of the evidence,” and I instructed earlier what that means. In order to find in favor of Mrs. Morgado on a claim of fraud, however, she must establish each element by “clear and convincing evidence,” which is a higher standard of proof than “preponderance of the evidence.”“Clear and convincing evidence” means evidence that satisfies you that there is a high degree of probability that there was fraud as I will define it for you shortly. Thus, to decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff's favor. A party who must prove her case by a preponderance of the evidence only need satisfy you that the evidence supporting her case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what she claims is what actually happened.Authority: Adapted from |
| 21. Fraud—ElementsIn | PJI 1:6421. Fraud—ElementsIn |
| order for Mrs. Morgado to prevail on her claim of fraud, she has the burden of establishing, by clear and convincing evidence, the following essential elements of her claim:(1) Defendants made a material false representation and/or omitted material information regarding Rezulin; and(2) At the time that the representation or omission was made, defendants knew that, or recklessly disregarded whether, the representation and/or omission was false or misleading; and(3) Defendants intended to deceive members of the medical community by that misrepresentation and/or omission; and(4) Dr. Salas reasonably and justifiably relied on the representation and/or omission; and(5) Dr. Salas' reliance on the misrepresentation and/or omission was a proximate cause of Mrs. Morgado's injury.21. Authority: Adapted from | order for Mrs. Morgado to prevail on her claim of fraud, she has the burden of establishing, by clear and convincing evidence, the following essential elements of her claim:(1) Defendants made a material false representation and/or omitted material information regarding Rezulin; and(2) At the time that the representation or omission was made, defendants knew that, or recklessly disregarded whether, the representation and/or omission was false or misleading; and(3) Defendants intended to deceive members of the medical community by that misrepresentation and/or omission; and(4) Dr. Salas reasonably and justifiably relied on the representation and/or omission; and(5) Dr. Salas' reliance on the misrepresentation and/or omission was a proximate cause of Mrs. Morgado's injury.21. Authority: Adapted from |
| PJI 2:230 |
| and | and |
| .22. Compensatory | PJI 3:20.22. Compensatory |
| DamagesIf you find that defendants are liable, Mrs. Morgado is entitled to recover a sum of money which will justly and fairly compensate Mrs. Morgado for any injury and conscious pain and suffering to date caused by defendants.In determining the amount, if any, to be awarded Mrs. Morgado for pain and suffering, you may take into consideration the effect that Mrs. Morgado's injuries have had on her ability to enjoy life. Loss of enjoyment of life involves the ability to perform daily tasks, to participate in the activities which were a part of Mrs. Morgado's life before the injury, and to experience the pleasures of life. However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that she has suffered.If you find that Mrs. Morgado, as a result of her injuries, suffered some loss of the ability to enjoy life and that Mrs. Morgado was aware, at some level, of a loss, you may take that loss into consideration in determining the amount to be awarded to Mrs. Morgado for pain and. suffering.Authority: Adapted from | DamagesIf you find that defendants are liable, Mrs. Morgado is entitled to recover a sum of money which will justly and fairly compensate Mrs. Morgado for any injury and conscious pain and suffering to date caused by defendants.In determining the amount, if any, to be awarded Mrs. Morgado for pain and suffering, you may take into consideration the effect that Mrs. Morgado's injuries have had on her ability to enjoy life. Loss of enjoyment of life involves the ability to perform daily tasks, to participate in the activities which were a part of Mrs. Morgado's life before the injury, and to experience the pleasures of life. However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that she has suffered.If you find that Mrs. Morgado, as a result of her injuries, suffered some loss of the ability to enjoy life and that Mrs. Morgado was aware, at some level, of a loss, you may take that loss into consideration in determining the amount to be awarded to Mrs. Morgado for pain and. suffering.Authority: Adapted from |
| ; | PJI 2:280; 2:280.1 |
| (Ed. Note—this should probably be 2:281)23. Punitive DamagesIn addition to awarding damages to compensate Mrs. Morgado for her injuries, you may, but are not required to, award Mrs. Morgado punitive damages if you find that the acts of the defendants that caused the injury complained of were wanton and reckless. The purpose of punitive damages is to punish the defendants for wanton and reckless acts and thereby to discourage the defendants and other companies from acting in a similar way in the future.An act is wanton and reckless when it is done in such a way and under such circumstances as to show conscious indifference and utter disregard of its effect upon the safety and rights of others.There is no exact rule by which to decide the amount of punitive damages. You may award punitive damages in such amount as in your sound judgment and discretion you find will punish the defendants for what they did and will deter the defendants and other companies from acting in a similar way in the future. In arriving at your decision as to the amount of punitive damages you should consider the following factors:1. The nature and reprehensibility of what the defendant did. That would include the character of the wrongdoing, how long it went on, the defendants' awareness of what harm the conduct caused or was likely to cause, any concealment or covering up of the wrongdoing, and whether and how often the defendants had committed these acts in the past;2. The actual and potential harm created by defendants' conduct. The amount of punitive damages should bear a reasonable relationship not only to the actual harm that Mrs. Morgado suffered or may suffer from defendants' conduct but also to the potential for harm created by the defendants; and3. The defendants' financial condition and the impact your punitive damages award will have on the defendant.Authority: Adapted from | (Ed. Note—this should probably be 2:281)23. Punitive DamagesIn addition to awarding damages to compensate Mrs. Morgado for her injuries, you may, but are not required to, award Mrs. Morgado punitive damages if you find that the acts of the defendants that caused the injury complained of were wanton and reckless. The purpose of punitive damages is to punish the defendants for wanton and reckless acts and thereby to discourage the defendants and other companies from acting in a similar way in the future.An act is wanton and reckless when it is done in such a way and under such circumstances as to show conscious indifference and utter disregard of its effect upon the safety and rights of others.There is no exact rule by which to decide the amount of punitive damages. You may award punitive damages in such amount as in your sound judgment and discretion you find will punish the defendants for what they did and will deter the defendants and other companies from acting in a similar way in the future. In arriving at your decision as to the amount of punitive damages you should consider the following factors:1. The nature and reprehensibility of what the defendant did. That would include the character of the wrongdoing, how long it went on, the defendants' awareness of what harm the conduct caused or was likely to cause, any concealment or covering up of the wrongdoing, and whether and how often the defendants had committed these acts in the past;2. The actual and potential harm created by defendants' conduct. The amount of punitive damages should bear a reasonable relationship not only to the actual harm that Mrs. Morgado suffered or may suffer from defendants' conduct but also to the potential for harm created by the defendants; and3. The defendants' financial condition and the impact your punitive damages award will have on the defendant.Authority: Adapted from |
| :278Author's | PJI 2:278Author's |
| Comment: For a discussion of corporate liability for punitive damages, see the Comment at 1B | Comment: For a discussion of corporate liability for punitive damages, see the Comment at 1B |
| , | NY PJI3d 2:278, |
| at 899 to 900 (2018).2. Instructions Proposed by Defendant1. Defendants' Request No. 1OverviewThis case involves the claims by plaintiff, Mrs. Concepcion Morgado, against the defendants Warner-Lambert Company and Parke-Davis. I may sometimes refer to Mrs. Morgado as “plaintiff” and I will refer to all of the defendants as “Warner-Lambert.”Rezulin was a prescription medication that was approved by the United States Food and Drug Administration for the treatment of diabetes. Rezulin was manufactured and sold by Warner-Lambert. Mrs. Morgado was prescribed Rezulin by her physician, Dr. Salas, to help treat her diabetes from April 1998 through August 1998.In August 1998, Mrs. Morgado developed jaundice and liver inflammation, which she claims was a side effect of her Rezulin treatment. Mrs. Morgado claims that Warner-Lambert failed to warn Dr. Salas of the risks associated with Rezulin, and that had Dr. Salas been warned about what plaintiff claims was omitted, Dr. Salas would not have prescribed Rezulin for Mrs. Morgado. Mrs. Morgado has made claims against Warner-Lambert for failure to warn, breach of express and implied warranty, violation of New York's consumer protection statute and fraud. She demands both compensatory and punitive damages. As we go through this charge, I will instruct you on each element of plaintiff's claims, and on the appropriate burden of proof that Mrs. Morgado has in proving those claims.Warner-Lambert asserts that the FDA-approved labeling for Rezulin which adequately warned Dr. Salas—the physician who prescribed Rezulin for Mrs. Morgado—of the risks associated with Rezulin, and that, in any event, plaintiff has not proven that Dr. Salas' prescribing decision would have changed had she been aware of information that plaintiff claims was omitted. As I will explain in greater detail later, under the law, if a manufacturer of a prescription medication adequately warns physicians of the risks associated with the medication, then it cannot be held liable if a patient suffers the side-effects warned against. Nor can a manufacturer be held liable if any failure to warn was not the proximate cause of the prescribing decision of the plaintiff's doctor. Thus, Warner-Lambert's position is that it cannot be held liable for any injury Mrs. Morgado may have suffered from treatment with Rezulin because Dr. Salas was adequately warned of such risks, and, in any event, any claimed omission in the warning labeling was not the proximate cause of Dr. Salas' prescribing decision.Mrs. Morgado claims to continue to have liver injury as a result of her Rezulin treatment. Warner-Lambert disputes that Mrs. Morgado continues to have liver injury today as a result of Rezulin. Warner-Lambert also contends that it adequately warned about the possibility of any continuing injury.So that is the essence of the dispute between the parties. I will be instructing you now on your duties and responsibilities as jurors, and on the elements of each of the claims of this case.2. Defendants' Request No. 2Pfizer and Parke-Davis As Separate DefendantsAlthough Mrs. Morgado has sued Warner-Lambert, Parke-Davis and Pfizer as if they were three separate defendants, I instruct you that Warner-Lambert is, for all practical purposes, the only defendant in this case. First, Parke-Davis is simply a division of Warner-Lambert, with no independent legal existence. Second, Pfizer was not involved in any of the events involved in this lawsuit, and so you should not consider Pfizer at all in any of your deliberations or determinations. A determination of liability, if any, can only be made against Warner-Lambert.3. Defendants' Request No. 3IntroductionNow that you have heard the evidence and the argument, it becomes my duty to give you the instructions of the Court as to the law applicable to this case. You are now called upon to determine whether the plaintiff, Concepcion Morgado, has proven her case. Remember, you have committed yourselves without reservation to follow the law as I give it to you now.It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. You should not be concerned with the wisdom of any rule of law stated by me.Counsel have quite properly referred to some of the governing rules of law in their arguments. If, however, any difference appears to you between the law as stated by counsel and that stated by the Court in these instructions, you are of course to be governed by the Court's instructions.Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts. That is your function.You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, prejudice or public opinion. All parties expect that you will carefully and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.Authority: Adapted from | at 899 to 900 (2018).2. Instructions Proposed by Defendant1. Defendants' Request No. 1OverviewThis case involves the claims by plaintiff, Mrs. Concepcion Morgado, against the defendants Warner-Lambert Company and Parke-Davis. I may sometimes refer to Mrs. Morgado as “plaintiff” and I will refer to all of the defendants as “Warner-Lambert.”Rezulin was a prescription medication that was approved by the United States Food and Drug Administration for the treatment of diabetes. Rezulin was manufactured and sold by Warner-Lambert. Mrs. Morgado was prescribed Rezulin by her physician, Dr. Salas, to help treat her diabetes from April 1998 through August 1998.In August 1998, Mrs. Morgado developed jaundice and liver inflammation, which she claims was a side effect of her Rezulin treatment. Mrs. Morgado claims that Warner-Lambert failed to warn Dr. Salas of the risks associated with Rezulin, and that had Dr. Salas been warned about what plaintiff claims was omitted, Dr. Salas would not have prescribed Rezulin for Mrs. Morgado. Mrs. Morgado has made claims against Warner-Lambert for failure to warn, breach of express and implied warranty, violation of New York's consumer protection statute and fraud. She demands both compensatory and punitive damages. As we go through this charge, I will instruct you on each element of plaintiff's claims, and on the appropriate burden of proof that Mrs. Morgado has in proving those claims.Warner-Lambert asserts that the FDA-approved labeling for Rezulin which adequately warned Dr. Salas—the physician who prescribed Rezulin for Mrs. Morgado—of the risks associated with Rezulin, and that, in any event, plaintiff has not proven that Dr. Salas' prescribing decision would have changed had she been aware of information that plaintiff claims was omitted. As I will explain in greater detail later, under the law, if a manufacturer of a prescription medication adequately warns physicians of the risks associated with the medication, then it cannot be held liable if a patient suffers the side-effects warned against. Nor can a manufacturer be held liable if any failure to warn was not the proximate cause of the prescribing decision of the plaintiff's doctor. Thus, Warner-Lambert's position is that it cannot be held liable for any injury Mrs. Morgado may have suffered from treatment with Rezulin because Dr. Salas was adequately warned of such risks, and, in any event, any claimed omission in the warning labeling was not the proximate cause of Dr. Salas' prescribing decision.Mrs. Morgado claims to continue to have liver injury as a result of her Rezulin treatment. Warner-Lambert disputes that Mrs. Morgado continues to have liver injury today as a result of Rezulin. Warner-Lambert also contends that it adequately warned about the possibility of any continuing injury.So that is the essence of the dispute between the parties. I will be instructing you now on your duties and responsibilities as jurors, and on the elements of each of the claims of this case.2. Defendants' Request No. 2Pfizer and Parke-Davis As Separate DefendantsAlthough Mrs. Morgado has sued Warner-Lambert, Parke-Davis and Pfizer as if they were three separate defendants, I instruct you that Warner-Lambert is, for all practical purposes, the only defendant in this case. First, Parke-Davis is simply a division of Warner-Lambert, with no independent legal existence. Second, Pfizer was not involved in any of the events involved in this lawsuit, and so you should not consider Pfizer at all in any of your deliberations or determinations. A determination of liability, if any, can only be made against Warner-Lambert.3. Defendants' Request No. 3IntroductionNow that you have heard the evidence and the argument, it becomes my duty to give you the instructions of the Court as to the law applicable to this case. You are now called upon to determine whether the plaintiff, Concepcion Morgado, has proven her case. Remember, you have committed yourselves without reservation to follow the law as I give it to you now.It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. You should not be concerned with the wisdom of any rule of law stated by me.Counsel have quite properly referred to some of the governing rules of law in their arguments. If, however, any difference appears to you between the law as stated by counsel and that stated by the Court in these instructions, you are of course to be governed by the Court's instructions.Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts. That is your function.You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, prejudice or public opinion. All parties expect that you will carefully and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.Authority: Adapted from |
| , , | N.Y. Pattern Jury Instr. 1:27, 1:37, 1:40 |
| (2002) [hereinafter “PJI”]4. Defendants' Request No. 4Role of the Jury: Consider Evidence in the CaseRemember, you are the sole and exclusive judges of the facts. You pass upon the weight of the evidence; you determine the credibility of the witnesses; you resolve such conflicts as there may be in the testimony; and you draw whatever reasonable inferences you decide to draw from the facts as you have determined them.I shall later discuss with you how to think about the credibility—or believability—of the witnesses.In determining the facts, you must rely upon your own recollection of the evidence. With respect to a factual matter, nothing I may have said during the trial, or may say during these instructions, should be taken in substitution for your own independent recollection. What I say is not evidence. What the attorneys for the parties have said in their opening statements, and in their closing arguments, and what they have said in their objections is not evidence.Evidence consists of the questions coupled with the answers given by witnesses—the testimony they gave, as you recall it—the exhibits that were received in evidence and any stipulations between the parties. In this connection, you should bear in mind that a question by itself is generally not evidence. Questions taken together with the answers constitute evidence.At times during the trial, I have sustained objections to questions asked without allowing the witness to answer or where any answer was made, instructed that it be stricken from the record and that you disregard it and dismiss it from your minds. You may not draw any inference or conclusions from any unanswered question nor may you consider testimony that has been stricken in reaching your decision. Similarly, you should not draw any inferences about the facts in dispute from any of counsel's objections. Lawyers for both the plaintiff and the defendant are required to protect their clients' interests and their objections are one way they perform this function. The law requires that your decision be made solely upon the evidence before you. Such items as I have excluded from your consideration were excluded because they were not legally admissible. You may not consider any answer that I directed you to disregard or that I directed to be struck from the record. Because you are the sole and exclusive judges of the facts, I do not mean to indicate any opinion as to the facts or what your verdict should be. Indeed I have no power to tell you what your verdict should be. If I allude to a fact and should your recollection differ from mine, it is your recollection that governs;The rulings I have made during the trial are not any indication of my views of what your decision should be.I also ask you to draw no inference from the fact that upon occasion I may have asked questions of certain witnesses. Such questions were only intended for clarification or to expedite matters and certainly were not intended to suggest any opinions on my part as to the verdict you should render or whether any of the witnesses may have been more credible than any other witness.You should consider only the evidence which was presented to you in the form of the testimony, including any deposition testimony, the exhibits and any stipulations. From this evidence you must determine the facts and apply the law as I now give it to you.Authority: Adapted from | (2002) [hereinafter “PJI”]4. Defendants' Request No. 4Role of the Jury: Consider Evidence in the CaseRemember, you are the sole and exclusive judges of the facts. You pass upon the weight of the evidence; you determine the credibility of the witnesses; you resolve such conflicts as there may be in the testimony; and you draw whatever reasonable inferences you decide to draw from the facts as you have determined them.I shall later discuss with you how to think about the credibility—or believability—of the witnesses.In determining the facts, you must rely upon your own recollection of the evidence. With respect to a factual matter, nothing I may have said during the trial, or may say during these instructions, should be taken in substitution for your own independent recollection. What I say is not evidence. What the attorneys for the parties have said in their opening statements, and in their closing arguments, and what they have said in their objections is not evidence.Evidence consists of the questions coupled with the answers given by witnesses—the testimony they gave, as you recall it—the exhibits that were received in evidence and any stipulations between the parties. In this connection, you should bear in mind that a question by itself is generally not evidence. Questions taken together with the answers constitute evidence.At times during the trial, I have sustained objections to questions asked without allowing the witness to answer or where any answer was made, instructed that it be stricken from the record and that you disregard it and dismiss it from your minds. You may not draw any inference or conclusions from any unanswered question nor may you consider testimony that has been stricken in reaching your decision. Similarly, you should not draw any inferences about the facts in dispute from any of counsel's objections. Lawyers for both the plaintiff and the defendant are required to protect their clients' interests and their objections are one way they perform this function. The law requires that your decision be made solely upon the evidence before you. Such items as I have excluded from your consideration were excluded because they were not legally admissible. You may not consider any answer that I directed you to disregard or that I directed to be struck from the record. Because you are the sole and exclusive judges of the facts, I do not mean to indicate any opinion as to the facts or what your verdict should be. Indeed I have no power to tell you what your verdict should be. If I allude to a fact and should your recollection differ from mine, it is your recollection that governs;The rulings I have made during the trial are not any indication of my views of what your decision should be.I also ask you to draw no inference from the fact that upon occasion I may have asked questions of certain witnesses. Such questions were only intended for clarification or to expedite matters and certainly were not intended to suggest any opinions on my part as to the verdict you should render or whether any of the witnesses may have been more credible than any other witness.You should consider only the evidence which was presented to you in the form of the testimony, including any deposition testimony, the exhibits and any stipulations. From this evidence you must determine the facts and apply the law as I now give it to you.Authority: Adapted from |
| , , ; .5. Defendants' | PJI 1:25, PJI 1:37, PJI 1:39; PJI 1:40.5. Defendants' |
| Request No. 5All Persons Equal Before the Law—OrganizationsAll parties to a lawsuit are entitled to the same fair and impartial consideration, whether they are corporations or individuals. You must not have any bias either in favor of or against Warner-Lambert because it is a corporation, nor may you have any bias either in favor of or against plaintiff because she is an individual.Authority: 3 Edward J. Devitt & Charles B. Blackmar, Federal Jury Practice and Instructions, § 71.04 (4th ed. 1992); 4 Leonard B. Sand, et al., Modern Federal Jury Instructions ¶ 72.01, No. 72-1 (1987).Author's Comment: Perhaps NY PJI should contain such an instruction against bias in favor of or against corporations as such.6. Defendants' Request No. 6Evidence—Direct or CircumstantialThere are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence—such as the testimony of an eyewitness. The other is indirect or circumstantial evidence—the proof of a chain of circumstances pointing to the existence or non-existence of certain facts.As a general rule, the law makes no distinction between direct or circumstantial evidence, but simply requires that the jury find the facts in accordance with all the evidence in the case, both direct and circumstantial.The question in the case is whether, based upon all the evidence, both direct and circumstantial, you find or do not find that the plaintiff has proven her case against the defendants.You are permitted to draw inferences—but are not required to do so—from either direct or circumstantial evidence. In drawing inferences you should exercise your common sense. An inference is a logical, factual conclusion which you might reasonably draw from other facts that have been proved. The matter of drawing inferences from facts in evidence is not a matter of guesswork or speculation. Under no circumstances are you permitted to speculate about the facts. Of course, you bring with you to this courtroom all of the experience and background of your lives and you may rely upon the logic of common experience itself. However, you may not engage in a speculative evaluation of the merits of this action. Speculation and surmise is not a substitute for proof, and where evidence is capable of an interpretation equally consistent with the presence or absence of liability, it must be interpreted against liability. The plaintiff is not entitled to recover if you would have to speculate about various causes of her alleged injuries.There are times when different inferences may be drawn from facts, whether they are proved by direct or circumstantial evidence. The plaintiff may ask you to draw one set of inferences. The defendant may ask you to draw another. It is for you, and for you alone, to decide what inferences you will draw.Authority: | Request No. 5All Persons Equal Before the Law—OrganizationsAll parties to a lawsuit are entitled to the same fair and impartial consideration, whether they are corporations or individuals. You must not have any bias either in favor of or against Warner-Lambert because it is a corporation, nor may you have any bias either in favor of or against plaintiff because she is an individual.Authority: 3 Edward J. Devitt & Charles B. Blackmar, Federal Jury Practice and Instructions, § 71.04 (4th ed. 1992); 4 Leonard B. Sand, et al., Modern Federal Jury Instructions ¶ 72.01, No. 72-1 (1987).Author's Comment: Perhaps NY PJI should contain such an instruction against bias in favor of or against corporations as such.6. Defendants' Request No. 6Evidence—Direct or CircumstantialThere are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence—such as the testimony of an eyewitness. The other is indirect or circumstantial evidence—the proof of a chain of circumstances pointing to the existence or non-existence of certain facts.As a general rule, the law makes no distinction between direct or circumstantial evidence, but simply requires that the jury find the facts in accordance with all the evidence in the case, both direct and circumstantial.The question in the case is whether, based upon all the evidence, both direct and circumstantial, you find or do not find that the plaintiff has proven her case against the defendants.You are permitted to draw inferences—but are not required to do so—from either direct or circumstantial evidence. In drawing inferences you should exercise your common sense. An inference is a logical, factual conclusion which you might reasonably draw from other facts that have been proved. The matter of drawing inferences from facts in evidence is not a matter of guesswork or speculation. Under no circumstances are you permitted to speculate about the facts. Of course, you bring with you to this courtroom all of the experience and background of your lives and you may rely upon the logic of common experience itself. However, you may not engage in a speculative evaluation of the merits of this action. Speculation and surmise is not a substitute for proof, and where evidence is capable of an interpretation equally consistent with the presence or absence of liability, it must be interpreted against liability. The plaintiff is not entitled to recover if you would have to speculate about various causes of her alleged injuries.There are times when different inferences may be drawn from facts, whether they are proved by direct or circumstantial evidence. The plaintiff may ask you to draw one set of inferences. The defendant may ask you to draw another. It is for you, and for you alone, to decide what inferences you will draw.Authority: |
| ; | PJI 1:70; |
| Bernstein v. City of New York, 69 N.Y.2d 1020, 517 N.Y.S.2d 908 (1987).Author's Comment: In proposing to adapt or modify a pattern charge, it is best to show the exact modifications requested.7. Defendants' Request No. 7Credibility of Witnesses—Discrepancies in TestimonyYou are the sole judges of the believability of each witness and the weight to be given the testimony of each. You should take into consideration the witness' means of knowledge, strength of memory and opportunities for observation. Also consider the reasonableness and inconsistency of the testimony.You should also consider the bias, prejudice, or interest, if any, the witness may have in the outcome of the trial, the conduct of the witness upon the witness stand, and all other facts and circumstances that affect the believability of the witness.Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more people witnessing an incident or a transaction may see or hear it differently; an innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.You may, in short, accept or reject the testimony of any witness in whole or in part. Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or non-existence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.Authority: Adapted from | Bernstein v. City of New York, 69 N.Y.2d 1020, 517 N.Y.S.2d 908 (1987).Author's Comment: In proposing to adapt or modify a pattern charge, it is best to show the exact modifications requested.7. Defendants' Request No. 7Credibility of Witnesses—Discrepancies in TestimonyYou are the sole judges of the believability of each witness and the weight to be given the testimony of each. You should take into consideration the witness' means of knowledge, strength of memory and opportunities for observation. Also consider the reasonableness and inconsistency of the testimony.You should also consider the bias, prejudice, or interest, if any, the witness may have in the outcome of the trial, the conduct of the witness upon the witness stand, and all other facts and circumstances that affect the believability of the witness.Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more people witnessing an incident or a transaction may see or hear it differently; an innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.You may, in short, accept or reject the testimony of any witness in whole or in part. Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or non-existence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.Authority: Adapted from |
| , , .8. Defendants' | PJI 1:7, PJI 1:8, PJI 1:22.8. Defendants' |
| Request No. 8Expert TestimonyYou have heard testimony from what we call an expert witness. Expert witnesses are witnesses who by education or experience have acquired learning or experience in a science or a specialized area of knowledge. Such witnesses are permitted to give their opinions as to the relevant matters in which they profess to be expert and give their reasons for their opinions.Now, your role in judging credibility applies to experts as well as to other witnesses. You should consider the expert opinions which were received in evidence in this case and give them as much as or as little weight as you think they deserve.It is not improper for an expert witness to be compensated for services. It is a customary and accepted procedure. However, you may consider an expert witness' bias as part of your overall evaluation of the expert's credibility.I will provide further instructions on expert testimony later.Authority: | Request No. 8Expert TestimonyYou have heard testimony from what we call an expert witness. Expert witnesses are witnesses who by education or experience have acquired learning or experience in a science or a specialized area of knowledge. Such witnesses are permitted to give their opinions as to the relevant matters in which they profess to be expert and give their reasons for their opinions.Now, your role in judging credibility applies to experts as well as to other witnesses. You should consider the expert opinions which were received in evidence in this case and give them as much as or as little weight as you think they deserve.It is not improper for an expert witness to be compensated for services. It is a customary and accepted procedure. However, you may consider an expert witness' bias as part of your overall evaluation of the expert's credibility.I will provide further instructions on expert testimony later.Authority: |
| .9. Defendants' | PJI 1:90.9. Defendants' |
| Request No. 9Depositions—Use as EvidenceDuring the trial of this case, certain testimony has been presented to you by way of deposition, consisting of sworn recorded answers to questions asked of the witness in advance of the trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason, cannot be present to testify from the witness stand, may be presented in writing under oath (or on a video recording played on a television set). Such testimony is entitled to the same consideration and is to be judged as to credibility, weight, and otherwise considered by the jury, as far as possible, in the same way as if the witness had been present, and had testified from the witness stand.Authority: | Request No. 9Depositions—Use as EvidenceDuring the trial of this case, certain testimony has been presented to you by way of deposition, consisting of sworn recorded answers to questions asked of the witness in advance of the trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason, cannot be present to testify from the witness stand, may be presented in writing under oath (or on a video recording played on a television set). Such testimony is entitled to the same consideration and is to be judged as to credibility, weight, and otherwise considered by the jury, as far as possible, in the same way as if the witness had been present, and had testified from the witness stand.Authority: |
| ; ; | PJI 1:94; N.Y. C.P.L.R. 3117 (McKinney 2003); |
| In re Matteo, 134 A.D.2d 261, 262, 520 N.Y.S.2d 594, 595 (2d Dep't 1987).10. Defendants' Request No. 10Burden of Proof—Preponderance of the EvidenceIn a civil lawsuit, such as this one, the law provides which party is to prove certain things to you. This is called “Burden of Proof.” In this case, the plaintiff, Mrs. Morgado, has the burden to prove all of the elements of each of her claims by a preponderance of the evidence. Warner-Lambert is not required to prove anything.When I say that a party has the burden of proof on any proposition by the “preponderance of the evidence,” I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the plaintiff has the burden of proof is more probably true than not true. The greater weight of the evidence does not mean the greater number of witnesses testifying to a fact, or the greater number of exhibits, but means what seems to you to be more convincing and more probably true.But as I will instruct you later, there are some issues as to which the plaintiff has an even higher burden of proof. Mrs. Morgado must establish her fraud claim and her claim for punitive damages not just by a preponderance of the evidence, but by clear and convincing evidence. In deciding whether Mrs. Morgado has carried her burden of proof, you are to take into account all the evidence, whether offered by Mrs. Morgado or by defendants.Authority: Adapted from | In re Matteo, 134 A.D.2d 261, 262, 520 N.Y.S.2d 594, 595 (2d Dep't 1987).10. Defendants' Request No. 10Burden of Proof—Preponderance of the EvidenceIn a civil lawsuit, such as this one, the law provides which party is to prove certain things to you. This is called “Burden of Proof.” In this case, the plaintiff, Mrs. Morgado, has the burden to prove all of the elements of each of her claims by a preponderance of the evidence. Warner-Lambert is not required to prove anything.When I say that a party has the burden of proof on any proposition by the “preponderance of the evidence,” I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the plaintiff has the burden of proof is more probably true than not true. The greater weight of the evidence does not mean the greater number of witnesses testifying to a fact, or the greater number of exhibits, but means what seems to you to be more convincing and more probably true.But as I will instruct you later, there are some issues as to which the plaintiff has an even higher burden of proof. Mrs. Morgado must establish her fraud claim and her claim for punitive damages not just by a preponderance of the evidence, but by clear and convincing evidence. In deciding whether Mrs. Morgado has carried her burden of proof, you are to take into account all the evidence, whether offered by Mrs. Morgado or by defendants.Authority: Adapted from |
| .11. Defendants' | PJI 1:23.11. Defendants' |
| Request No. 11Unavoidable Risks for Prescription DrugsThe fact that a person may have experienced a side effect and sustained injury because she was treated with Rezulin does not, in and of itself, mean that Warner-Lambert should be liable. Even though a person taking a prescription medication experiences a side effect, the manufacturer is not liable if the medication is accompanied by labeling that provides an adequate warning to the plaintiff's prescribing physician concerning the potential side effect that the plaintiff experienced.A manufacturer is not obligated to produce a prescription medication that is totally incapable of causing side effects or injury. No medication can be made completely free of potential side-effects. Medical experience justifies the marketing and use of a prescription medication notwithstanding a medically recognizable risk. As a result, a manufacturer cannot be held liable for injuries caused by a prescription medication if the manufacturer warned physicians about the risks reasonably known to the manufacturer at the time the plaintiff was prescribed the medication.Authority: Adapted from PJI2:141; Restatement (Second) of Torts § 402A cmt. k (1965); Martin v. Hacker, 83 N.Y.2d 1, 8–9 & n.1, 607 N.Y.S.2d 598, 601 (1993); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 61–62, 423 N.Y.S.2d 95, 97 (4th Dep't 1979), | Request No. 11Unavoidable Risks for Prescription DrugsThe fact that a person may have experienced a side effect and sustained injury because she was treated with Rezulin does not, in and of itself, mean that Warner-Lambert should be liable. Even though a person taking a prescription medication experiences a side effect, the manufacturer is not liable if the medication is accompanied by labeling that provides an adequate warning to the plaintiff's prescribing physician concerning the potential side effect that the plaintiff experienced.A manufacturer is not obligated to produce a prescription medication that is totally incapable of causing side effects or injury. No medication can be made completely free of potential side-effects. Medical experience justifies the marketing and use of a prescription medication notwithstanding a medically recognizable risk. As a result, a manufacturer cannot be held liable for injuries caused by a prescription medication if the manufacturer warned physicians about the risks reasonably known to the manufacturer at the time the plaintiff was prescribed the medication.Authority: Adapted from PJI2:141; Restatement (Second) of Torts § 402A cmt. k (1965); Martin v. Hacker, 83 N.Y.2d 1, 8–9 & n.1, 607 N.Y.S.2d 598, 601 (1993); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 61–62, 423 N.Y.S.2d 95, 97 (4th Dep't 1979), |
| , | aff'd, |
| 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980).12. Defendants' Request No. 12Failure to Warn—ElementsMrs. Morgado claims that Warner-Lambert did not adequately warn Dr. Salas about the potential risks of liver injury associated with Rezulin. Warner-Lambert contends that its warnings to Dr. Salas were adequate.Mrs. Morgado has the burden of establishing, by a preponderance of the evidence, each of the following elements of her failure to warn claim:(1) First, at the time that Dr. Salas prescribed Rezulin for Mrs. Morgado, Warner-Lambert failed to provide an adequate warning to Dr. Salas about the risk of the side effect experienced by Mrs. Morgado; and(2) Second, that this failure to warn was a proximate cause of Dr. Salas' decision to prescribe Rezulin for Mrs. Morgado, which means that Dr. Salas would not have prescribed Rezulin for Mrs. Morgado if Dr. Salas knew the information that plaintiff claims was omitted from the labeling.If Mrs. Morgado cannot establish both of these elements by a preponderance of the evidence, you must return a verdict for Warner-Lambert.Authority: | 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980).12. Defendants' Request No. 12Failure to Warn—ElementsMrs. Morgado claims that Warner-Lambert did not adequately warn Dr. Salas about the potential risks of liver injury associated with Rezulin. Warner-Lambert contends that its warnings to Dr. Salas were adequate.Mrs. Morgado has the burden of establishing, by a preponderance of the evidence, each of the following elements of her failure to warn claim:(1) First, at the time that Dr. Salas prescribed Rezulin for Mrs. Morgado, Warner-Lambert failed to provide an adequate warning to Dr. Salas about the risk of the side effect experienced by Mrs. Morgado; and(2) Second, that this failure to warn was a proximate cause of Dr. Salas' decision to prescribe Rezulin for Mrs. Morgado, which means that Dr. Salas would not have prescribed Rezulin for Mrs. Morgado if Dr. Salas knew the information that plaintiff claims was omitted from the labeling.If Mrs. Morgado cannot establish both of these elements by a preponderance of the evidence, you must return a verdict for Warner-Lambert.Authority: |
| ; | PJI 2:135; see |
| also Martin v. Hacker, 83 N.Y.2d 1, 8, 607 N.Y.S.2d 598, 601 (1993); Sosna v. American Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (1st Dep't. 2002); Glucksman v. Halsey Drug Co., 160 A.D.2d 305, 307, 553 N.Y.S.2d 724, 726 (1st Dep't 1990).13. Defendants' Request No. 13Failure to Warn—Learned Intermediary DoctrineWarnings for prescription drugs are intended for the physician, whose duty it is to balance the risks against the benefits of various drugs and treatments and to prescribe them and supervise their effects. The physician's function is to evaluate the patient's needs, assess risks and benefits of available drugs and then prescribe a medication. The physician acts as an “informed intermediary” between the manufacturer and the patient. Thus, a manufacturer's duty to caution against a drug's side effects is fulfilled by giving an adequate warning to the prescribing physician, and not directly to the patient.Because Rezulin is a prescription drug, Warner-Lambert's duty was to exercise reasonable care in the information that it provided to Dr. Salas, who used her professional judgment to decide whether to prescribe Rezulin for Mrs. Morgado. Warner-Lambert was not under a duty to give any warning to Mrs. Morgado herself.Authority: Martin v. Hacker, 83 N.Y.2d 1 9, 607 N.Y.S.2d 598, 601 (1993); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 61–62, 436 N.Y.S.2d 95, 97 (4th Dep't 1979), | also Martin v. Hacker, 83 N.Y.2d 1, 8, 607 N.Y.S.2d 598, 601 (1993); Sosna v. American Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (1st Dep't. 2002); Glucksman v. Halsey Drug Co., 160 A.D.2d 305, 307, 553 N.Y.S.2d 724, 726 (1st Dep't 1990).13. Defendants' Request No. 13Failure to Warn—Learned Intermediary DoctrineWarnings for prescription drugs are intended for the physician, whose duty it is to balance the risks against the benefits of various drugs and treatments and to prescribe them and supervise their effects. The physician's function is to evaluate the patient's needs, assess risks and benefits of available drugs and then prescribe a medication. The physician acts as an “informed intermediary” between the manufacturer and the patient. Thus, a manufacturer's duty to caution against a drug's side effects is fulfilled by giving an adequate warning to the prescribing physician, and not directly to the patient.Because Rezulin is a prescription drug, Warner-Lambert's duty was to exercise reasonable care in the information that it provided to Dr. Salas, who used her professional judgment to decide whether to prescribe Rezulin for Mrs. Morgado. Warner-Lambert was not under a duty to give any warning to Mrs. Morgado herself.Authority: Martin v. Hacker, 83 N.Y.2d 1 9, 607 N.Y.S.2d 598, 601 (1993); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 61–62, 436 N.Y.S.2d 95, 97 (4th Dep't 1979), |
| , | aff'd, |
| 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980).14. Defendants' Request No. 14Failure to Warn—Duty Only to Warn of Known or Knowable RisksThe manufacturer's duty is to warn the prescribing physician of potential side effects or dangers associated with its prescription medications that it knew or, in the exercise of reasonable care, should have known to exist. There is no obligation to warn of unknown or unknowable risks.Thus, Warner-Lambert's duty was to provide an adequate warning to Dr. Salas concerning side-effects that Mrs. Morgado experienced, which were associated with the use of Rezulin, and that were known to Warner-Lambert or reasonably knowable in light of the generally accepted scientific knowledge available at the time that Dr. Salas prescribed Rezulin for Mrs. Morgado.If you find that Warner-Lambert failed to warn of a risk about which it did not know, or should not have known in the exercise of reasonable care at the time that Dr. Salas prescribed Rezulin to Mrs. Morgado, you must find in favor of Warner-Lambert.Authority: | 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980).14. Defendants' Request No. 14Failure to Warn—Duty Only to Warn of Known or Knowable RisksThe manufacturer's duty is to warn the prescribing physician of potential side effects or dangers associated with its prescription medications that it knew or, in the exercise of reasonable care, should have known to exist. There is no obligation to warn of unknown or unknowable risks.Thus, Warner-Lambert's duty was to provide an adequate warning to Dr. Salas concerning side-effects that Mrs. Morgado experienced, which were associated with the use of Rezulin, and that were known to Warner-Lambert or reasonably knowable in light of the generally accepted scientific knowledge available at the time that Dr. Salas prescribed Rezulin for Mrs. Morgado.If you find that Warner-Lambert failed to warn of a risk about which it did not know, or should not have known in the exercise of reasonable care at the time that Dr. Salas prescribed Rezulin to Mrs. Morgado, you must find in favor of Warner-Lambert.Authority: |
| ; | PJI 2:135; see |
| Martin v. Hacker, 83 N.Y.2d 1, 10, 607 N.Y.S.2d 598, 602 (1993).15. Defendants' Request No. 15Failure to Warn—Adequacy of WarningIn considering the adequacy of Warner-Lambert's warnings for Rezulin, you must bear in mind that the warning is to be read and understood by physicians, not laypersons. Whether the content of a warning accompanying a prescription medication is adequate depends on the physician involved. Thus, you must consider whether Dr. Salas understood the Rezulin warnings in light of her medical training and background, and not whether someone without Dr. Salas' medical training and background would have understood the warning.Authority: Martin v. Hacker, 83 N.Y.2d 1, 10, 607 N.Y.S.2d 598, 602 (1993); Glucksman v. Halsey Drug Co., 160 A.D.2d 305, 307, 553 N.Y.S.2d 724, 726 (1st Dep't 1990).16. Defendants' Request No. 16Failure to Warn—Adequacy of WarningIn considering the adequacy of Warner-Lambert's warnings for Rezulin, you must consider the warnings as a whole. Even if individual sentences in a warning reveal differing nuances in meaning or variations in emphasis as to the seriousness of a side effect, a warning is adequate if when read as a whole, the warning conveys a meaning as to the potential consequences associated with the drug that is unmistakable. If the warnings as a whole accompanying Rezulin at the time that it was prescribed to Mrs. Morgado were adequate, then you must find in favor of Warner-Lambert.Authority: Martin v. Hacker, 83 N.Y.2d 1, 12–15, 607 N.Y.S.2d 598, 603–05 (1993).17. Defendants' Request No. 17Failure to Warn—Adequacy of WarningA warning is adequate if it conveys the risk of the side-effect that plaintiff claims she experienced. Mrs. Morgado claims that she experienced jaundice and inflammation of the liver. If you find that Warner-Lambert adequately warned Mrs. Morgado of the risk of those side-effects, you must find in favor of.Warner-Lambert, regardless of the adequacy of warnings concerning any other potential side-effects. If you find that Warner-Lambert failed to adequately warn of a side effect or injury that Mrs. Morgado did not experience, this failure has no bearing on this case and should not influence your verdict.Authority: Martin v. Hacker, 83 N.Y.2d 1, 11, 607 N.Y.S.2d 598, 603 (1993); Eiser v. Feldman, 123 A.D.2d 583, 583–84, 507 N.Y.S.2d 386, 388 (1st Dep't 1986); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62–63, 436 N.Y.S.2d 95, 97–98 (4th Dep't 1979), | Martin v. Hacker, 83 N.Y.2d 1, 10, 607 N.Y.S.2d 598, 602 (1993).15. Defendants' Request No. 15Failure to Warn—Adequacy of WarningIn considering the adequacy of Warner-Lambert's warnings for Rezulin, you must bear in mind that the warning is to be read and understood by physicians, not laypersons. Whether the content of a warning accompanying a prescription medication is adequate depends on the physician involved. Thus, you must consider whether Dr. Salas understood the Rezulin warnings in light of her medical training and background, and not whether someone without Dr. Salas' medical training and background would have understood the warning.Authority: Martin v. Hacker, 83 N.Y.2d 1, 10, 607 N.Y.S.2d 598, 602 (1993); Glucksman v. Halsey Drug Co., 160 A.D.2d 305, 307, 553 N.Y.S.2d 724, 726 (1st Dep't 1990).16. Defendants' Request No. 16Failure to Warn—Adequacy of WarningIn considering the adequacy of Warner-Lambert's warnings for Rezulin, you must consider the warnings as a whole. Even if individual sentences in a warning reveal differing nuances in meaning or variations in emphasis as to the seriousness of a side effect, a warning is adequate if when read as a whole, the warning conveys a meaning as to the potential consequences associated with the drug that is unmistakable. If the warnings as a whole accompanying Rezulin at the time that it was prescribed to Mrs. Morgado were adequate, then you must find in favor of Warner-Lambert.Authority: Martin v. Hacker, 83 N.Y.2d 1, 12–15, 607 N.Y.S.2d 598, 603–05 (1993).17. Defendants' Request No. 17Failure to Warn—Adequacy of WarningA warning is adequate if it conveys the risk of the side-effect that plaintiff claims she experienced. Mrs. Morgado claims that she experienced jaundice and inflammation of the liver. If you find that Warner-Lambert adequately warned Mrs. Morgado of the risk of those side-effects, you must find in favor of.Warner-Lambert, regardless of the adequacy of warnings concerning any other potential side-effects. If you find that Warner-Lambert failed to adequately warn of a side effect or injury that Mrs. Morgado did not experience, this failure has no bearing on this case and should not influence your verdict.Authority: Martin v. Hacker, 83 N.Y.2d 1, 11, 607 N.Y.S.2d 598, 603 (1993); Eiser v. Feldman, 123 A.D.2d 583, 583–84, 507 N.Y.S.2d 386, 388 (1st Dep't 1986); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62–63, 436 N.Y.S.2d 95, 97–98 (4th Dep't 1979), |
| , ; | aff'd, 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980); |
| Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir. 1991).18. Defendants' Request No. 18State of the ArtEvidence that Rezulin was labeled in accordance with the prevailing standards and customs representing the state of the art in the industry at the time is persuasive in showing that Warner-Lambert exercised reasonable care in its labeling of Rezulin and, therefore, its warnings were adequate.Authority: Adapted from | Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir. 1991).18. Defendants' Request No. 18State of the ArtEvidence that Rezulin was labeled in accordance with the prevailing standards and customs representing the state of the art in the industry at the time is persuasive in showing that Warner-Lambert exercised reasonable care in its labeling of Rezulin and, therefore, its warnings were adequate.Authority: Adapted from |
| ; | PJI 2:16; |
| Restatement (Second) of Torts § 402A cmts. j & k (1965). See also Eiser v. Feldman, 123 A.D.2d 583, 584, 507 N.Y.S.2d 386, 388 (1st Dep't 1986); Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 337, 502 N.Y.S.2d 696, 701 (1986); Trimarco v. Klein, 56 N.Y.2d 98, 105–06, 451 N.Y.S.2d 52, 55–56 (1982).19. Defendants' Request No. 19Failure to Warn—Adequacy of WarningBefore a new drug can be sold, it must be approved by the United States Food and Drug Administration, or FDA. In approving new drugs, the FDA takes into consideration the fact that a drug may have some risks, including unknown risks, and balances that fact against the beneficial uses to which that drug may be put. Rezulin was approved by the FDA.A pharmaceutical company warns physicians through drug labeling. The term “labeling” refers to what is called the package insert, which sets forth the risks and instructions for use of the drug, as well as other communications to physicians, including “Dear Doctor” letters sent by prescription pharmaceutical manufacturers to prescribing doctors.Labeling or package inserts must be written in accordance with the FDA's recommendation for the proper labeling of prescription drugs. Before labeling can be used with a new prescription drug, the label, including the language of the warnings, must be approved by the FDA. In approving the labeling, the FDA considers the risks and benefits of the drug and the best way to communicate that information to the medical community so that it will be understood and so medications will be available to treat illnesses. The labeling for Rezulin was approved by the FDA.You may consider the government's approval of Rezulin and the government's approval of the warnings for Rezulin, together with all the other evidence in this case, in deciding whether Warner-Lambert adequately informed Dr. Salas of what it knew or reasonably should have known about the risks associated with Rezulin treatment.Authority: 21 U.S.C. § 355(b)(1)(F) (1994); 21 C.F.R. § 310.303(a) (2003); Martin v. Hacker, 83 N.Y.2d 1, 9–16, 607 N.Y.S.2d 598, 60 1–05 (1993); Restatement (Third) of Torts, Products Liability § 4(b) (1998).Note: This instruction is submitted without prejudice to Warner-Lambert's contention that plaintiff's claims are preempted by virtue of FDA approval. Buckman Co. v. Plaintiff's' Legal Comm., 531 U.S. 341, 348 (2001); Geier v. American Honda Motor Co., 529 U.S. 861, 886 (2000).Author's Comment: The charge request appropriately makes clear that several instructions are not derived from PJI and properly provides statutory and other authority for such non-pattern charges.20. Defendants' Request No. 20Failure to Warn—Adequacy of WarningThere are public health and policy implications regarding warnings accompanying prescription medications. In considering the language of warnings accompanying prescription medications, the FDA has an interest in preventing information overload, which may lead physicians to ignore inserts or to read but not fully attend to them. In addition, false or unnecessary warnings could unwisely deter physicians from prescribing-and patients from taking-FDA-approved medications to treat serious illnesses. You should consider these public health and policy factors in determining whether a reasonable manufacturer would have included the information in the Rezulin warnings that plaintiff claims was omitted. If you find, in light of these factors, that plaintiff has not demonstrated that the Rezulin labeling should have contained the information she contends was omitted, then you must find in favor of Warner-Lambert.Authority: Fisher v. Ford Motor Co., 224 F.3d 570, 574 (6th Cir. 2000); Richard M. Cooper, Drug Labeling and Products Liability: The Role of the Food and Drug Administration, 41 Food Drug Cosm. L.J. 233, 238 (1986); Thomas Scarlett, The Relationship Among Drug Reaction Reporting, Drug Labeling, Product Liability, and Federal Preemption, 46 Food Drug Cosm. L.J. 31, 40 (1991).21. Defendants' Request No. 21Failure to Warn—Adequacy of WarningIf you find that plaintiff has not established by a preponderance of the evidence that Warner-Lambert provided an inadequate warning to Dr. Salas concerning Rezulin, then you must find in favor of Warner-Lambert on Mrs. Morgado's failure to warn claim.Authority: Restatement (Second) of Torts, § 402A cmt. k (1965); Martin v. Hacker, 83 N.Y.2d 1, 8–9 & n.1, 607 N.Y.S.2d 598, 601 (N.Y. 1993); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62, 423 N.Y.S.2d 95, 97 (4th Dep't 1979), | Restatement (Second) of Torts § 402A cmts. j & k (1965). See also Eiser v. Feldman, 123 A.D.2d 583, 584, 507 N.Y.S.2d 386, 388 (1st Dep't 1986); Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 337, 502 N.Y.S.2d 696, 701 (1986); Trimarco v. Klein, 56 N.Y.2d 98, 105–06, 451 N.Y.S.2d 52, 55–56 (1982).19. Defendants' Request No. 19Failure to Warn—Adequacy of WarningBefore a new drug can be sold, it must be approved by the United States Food and Drug Administration, or FDA. In approving new drugs, the FDA takes into consideration the fact that a drug may have some risks, including unknown risks, and balances that fact against the beneficial uses to which that drug may be put. Rezulin was approved by the FDA.A pharmaceutical company warns physicians through drug labeling. The term “labeling” refers to what is called the package insert, which sets forth the risks and instructions for use of the drug, as well as other communications to physicians, including “Dear Doctor” letters sent by prescription pharmaceutical manufacturers to prescribing doctors.Labeling or package inserts must be written in accordance with the FDA's recommendation for the proper labeling of prescription drugs. Before labeling can be used with a new prescription drug, the label, including the language of the warnings, must be approved by the FDA. In approving the labeling, the FDA considers the risks and benefits of the drug and the best way to communicate that information to the medical community so that it will be understood and so medications will be available to treat illnesses. The labeling for Rezulin was approved by the FDA.You may consider the government's approval of Rezulin and the government's approval of the warnings for Rezulin, together with all the other evidence in this case, in deciding whether Warner-Lambert adequately informed Dr. Salas of what it knew or reasonably should have known about the risks associated with Rezulin treatment.Authority: 21 U.S.C. § 355(b)(1)(F) (1994); 21 C.F.R. § 310.303(a) (2003); Martin v. Hacker, 83 N.Y.2d 1, 9–16, 607 N.Y.S.2d 598, 60 1–05 (1993); Restatement (Third) of Torts, Products Liability § 4(b) (1998).Note: This instruction is submitted without prejudice to Warner-Lambert's contention that plaintiff's claims are preempted by virtue of FDA approval. Buckman Co. v. Plaintiff's' Legal Comm., 531 U.S. 341, 348 (2001); Geier v. American Honda Motor Co., 529 U.S. 861, 886 (2000).Author's Comment: The charge request appropriately makes clear that several instructions are not derived from PJI and properly provides statutory and other authority for such non-pattern charges.20. Defendants' Request No. 20Failure to Warn—Adequacy of WarningThere are public health and policy implications regarding warnings accompanying prescription medications. In considering the language of warnings accompanying prescription medications, the FDA has an interest in preventing information overload, which may lead physicians to ignore inserts or to read but not fully attend to them. In addition, false or unnecessary warnings could unwisely deter physicians from prescribing-and patients from taking-FDA-approved medications to treat serious illnesses. You should consider these public health and policy factors in determining whether a reasonable manufacturer would have included the information in the Rezulin warnings that plaintiff claims was omitted. If you find, in light of these factors, that plaintiff has not demonstrated that the Rezulin labeling should have contained the information she contends was omitted, then you must find in favor of Warner-Lambert.Authority: Fisher v. Ford Motor Co., 224 F.3d 570, 574 (6th Cir. 2000); Richard M. Cooper, Drug Labeling and Products Liability: The Role of the Food and Drug Administration, 41 Food Drug Cosm. L.J. 233, 238 (1986); Thomas Scarlett, The Relationship Among Drug Reaction Reporting, Drug Labeling, Product Liability, and Federal Preemption, 46 Food Drug Cosm. L.J. 31, 40 (1991).21. Defendants' Request No. 21Failure to Warn—Adequacy of WarningIf you find that plaintiff has not established by a preponderance of the evidence that Warner-Lambert provided an inadequate warning to Dr. Salas concerning Rezulin, then you must find in favor of Warner-Lambert on Mrs. Morgado's failure to warn claim.Authority: Restatement (Second) of Torts, § 402A cmt. k (1965); Martin v. Hacker, 83 N.Y.2d 1, 8–9 & n.1, 607 N.Y.S.2d 598, 601 (N.Y. 1993); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62, 423 N.Y.S.2d 95, 97 (4th Dep't 1979), |
| , | aff'd, |
| 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980).22. Defendants' Request No. 22Failure to Warn—Proximate CauseIf you find that plaintiff has established by a preponderance of the evidence that Warner-Lambert provided an inadequate warning to Dr. Salas concerning Rezulin, then before you can consider a finding regarding liability, you must consider whether plaintiff has also established another essential element by a preponderance of the evidence—that the inadequate warning was the proximate cause of her injury. To establish proximate causation, Mrs. Morgado must prove that had the labeling contained the information plaintiff contends was omitted, Dr. Salas would not have prescribed Rezulin. If Dr. Salas would have prescribed Rezulin even if she had that information, then an inadequate warning was not the proximate cause of Mrs. Morgado's injury. Thus, if you find that plaintiff has not carried the burden to establish by a preponderance of the evidence that Dr. Salas' decision to prescribe Rezulin would have changed had she been provided with the information plaintiff claims was omitted, you must find in favor of Warner-Lambert.Authority: Glucksman v. Halsey Drug Co., Inc., 533 N.Y.S.2d 724, 160 A.D.2d 305, 307 (1st Dep't 1990); Andre v. Mecta Corp., 587 N.Y.S.2d 334, 186 A.D.2d 1, 2, (1st Dep't 1992); Travelers Insurance Co. v. Federal Pacific Electric Co., 625 N.Y.S.2d 121, 211 A.D.2d 40, 43 (1st Dep't 1995); | 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980).22. Defendants' Request No. 22Failure to Warn—Proximate CauseIf you find that plaintiff has established by a preponderance of the evidence that Warner-Lambert provided an inadequate warning to Dr. Salas concerning Rezulin, then before you can consider a finding regarding liability, you must consider whether plaintiff has also established another essential element by a preponderance of the evidence—that the inadequate warning was the proximate cause of her injury. To establish proximate causation, Mrs. Morgado must prove that had the labeling contained the information plaintiff contends was omitted, Dr. Salas would not have prescribed Rezulin. If Dr. Salas would have prescribed Rezulin even if she had that information, then an inadequate warning was not the proximate cause of Mrs. Morgado's injury. Thus, if you find that plaintiff has not carried the burden to establish by a preponderance of the evidence that Dr. Salas' decision to prescribe Rezulin would have changed had she been provided with the information plaintiff claims was omitted, you must find in favor of Warner-Lambert.Authority: Glucksman v. Halsey Drug Co., Inc., 533 N.Y.S.2d 724, 160 A.D.2d 305, 307 (1st Dep't 1990); Andre v. Mecta Corp., 587 N.Y.S.2d 334, 186 A.D.2d 1, 2, (1st Dep't 1992); Travelers Insurance Co. v. Federal Pacific Electric Co., 625 N.Y.S.2d 121, 211 A.D.2d 40, 43 (1st Dep't 1995); |
| ; | PJI 2:135; |
| RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. j; RESTATEMENT (SECOND) OF TORTS: § 402A cmt. k.23. Defendants' Request No. 23Failure to Warn—Proximate Cause—Independent Knowledge of RisksIn addition to the manufacturer's labeling, doctors may learn of risks associated with prescription medications through medical literature, their colleagues or their own experience. If a doctor is aware of the risks associated with a prescription medication through sources other than the manufacturer, then the fact that such risks were not adequately disclosed by the manufacturer cannot have changed the doctor's prescribing decision. Thus, if Dr. Salas knew of the risks associated with Rezulin from sources other than Warner-Lambert, then an inadequate warning was not the proximate cause of Dr. Salas' prescribing decision, and you must find in favor of Warner-Lambert.Authority: Glucksman v. Halsey Drug Co., Inc., 160 A.D.2d 305, 307, 533 N.Y.S.2d 724 (1st Dep't 1990); Andre v. Mecta Corp., 186 A.D.2d 1, 2, 587 N.Y.S.2d 334 (1st Dep't 1992); Travelers Insurance Co. v. Federal Pacific Electric Co., 211 A.D.2d 40, 43, 625 N.Y.S.2d 121 (1st Dep't 1995); | RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. j; RESTATEMENT (SECOND) OF TORTS: § 402A cmt. k.23. Defendants' Request No. 23Failure to Warn—Proximate Cause—Independent Knowledge of RisksIn addition to the manufacturer's labeling, doctors may learn of risks associated with prescription medications through medical literature, their colleagues or their own experience. If a doctor is aware of the risks associated with a prescription medication through sources other than the manufacturer, then the fact that such risks were not adequately disclosed by the manufacturer cannot have changed the doctor's prescribing decision. Thus, if Dr. Salas knew of the risks associated with Rezulin from sources other than Warner-Lambert, then an inadequate warning was not the proximate cause of Dr. Salas' prescribing decision, and you must find in favor of Warner-Lambert.Authority: Glucksman v. Halsey Drug Co., Inc., 160 A.D.2d 305, 307, 533 N.Y.S.2d 724 (1st Dep't 1990); Andre v. Mecta Corp., 186 A.D.2d 1, 2, 587 N.Y.S.2d 334 (1st Dep't 1992); Travelers Insurance Co. v. Federal Pacific Electric Co., 211 A.D.2d 40, 43, 625 N.Y.S.2d 121 (1st Dep't 1995); |
| ; | PJI 2:135; |
| RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. j; RESTATEMENT (SECOND) OF TORTS: § 402A cmt. k.24. Defendants' Request No. 24Failure to Warn—Proximate CauseWhen plaintiff's attorney asked Dr. Salas if her prescribing decision would have changed if she had known the allegedly omitted information, Dr. Salas testified that she would not have prescribed Rezulin to Mrs. Morgado if she had known: (1) that Rezulin subsequently would be taken off the market; and (2) that Mrs. Morgado subsequently would experience side effects from Rezulin treatment. Facts about future events that were not known or knowable at the time that Dr. Salas prescribed Rezulin for Mrs. Morgado cannot form the basis for a finding that the Rezulin warnings were inadequate or that Dr. Salas would have changed her prescribing decision.Authority: | RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. j; RESTATEMENT (SECOND) OF TORTS: § 402A cmt. k.24. Defendants' Request No. 24Failure to Warn—Proximate CauseWhen plaintiff's attorney asked Dr. Salas if her prescribing decision would have changed if she had known the allegedly omitted information, Dr. Salas testified that she would not have prescribed Rezulin to Mrs. Morgado if she had known: (1) that Rezulin subsequently would be taken off the market; and (2) that Mrs. Morgado subsequently would experience side effects from Rezulin treatment. Facts about future events that were not known or knowable at the time that Dr. Salas prescribed Rezulin for Mrs. Morgado cannot form the basis for a finding that the Rezulin warnings were inadequate or that Dr. Salas would have changed her prescribing decision.Authority: |
| ; | PJI 2:135; see |
| also Martin v. Hacker, 83 N.Y.2d 1, 607 N.Y.S.2d 598 (1993).25. Defendants' Request No. 25No Inference From Withdrawal of RezulinYou have heard testimony that Rezulin was voluntarily withdrawn from the market. This happened after Mrs. Morgado was treated with Rezulin. Products are frequently withdrawn from the market as they are replaced by newer and more advanced products. Therefore, the fact that Rezulin was withdrawn from the market is of no consequence to this case. Under the law, you cannot draw any inference concerning the adequacy of Wamer-Lambert's Rezulin warnings or the cause of Mrs. Morgado's injury from the fact of Rezulin's subsequent withdrawal.Authority: Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378 (1984).26. Defendants' Request No. 26Express WarrantyPlaintiff also seeks to recover against the defendant on the theory that certain express warranties made by the defendant to the plaintiff have been breached.Under New York law a manufacturer which in advertising and labeling its product represents the quality to the public in such a way as to induce purchase or use, thereby makes an express warranty that it will conform to the representation. If the product does not conform to the representation, the warranty is breached.In order for you to find for Mrs. Morgado on her claim for breach of express warranty, Mrs. Morgado must prove by a preponderance of the evidence the following essential elements:(1) Warner-Lambert represented the quality of Rezulin to Dr. Salas in such a way as to induce Dr. Salas to prescribe it for plaintiff;(2) Dr. Salas actually relied on such representation; and(3) Rezulin did not conform to that representation; and(4) such non-conformance was the proximate cause of plaintiff's injuries.If Mrs. Morgado fails to prove any one of these elements by a preponderance of the evidence, you must return a verdict in favor of Warner-Lambert on the claim of breach of express warranty.Authority: | also Martin v. Hacker, 83 N.Y.2d 1, 607 N.Y.S.2d 598 (1993).25. Defendants' Request No. 25No Inference From Withdrawal of RezulinYou have heard testimony that Rezulin was voluntarily withdrawn from the market. This happened after Mrs. Morgado was treated with Rezulin. Products are frequently withdrawn from the market as they are replaced by newer and more advanced products. Therefore, the fact that Rezulin was withdrawn from the market is of no consequence to this case. Under the law, you cannot draw any inference concerning the adequacy of Wamer-Lambert's Rezulin warnings or the cause of Mrs. Morgado's injury from the fact of Rezulin's subsequent withdrawal.Authority: Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378 (1984).26. Defendants' Request No. 26Express WarrantyPlaintiff also seeks to recover against the defendant on the theory that certain express warranties made by the defendant to the plaintiff have been breached.Under New York law a manufacturer which in advertising and labeling its product represents the quality to the public in such a way as to induce purchase or use, thereby makes an express warranty that it will conform to the representation. If the product does not conform to the representation, the warranty is breached.In order for you to find for Mrs. Morgado on her claim for breach of express warranty, Mrs. Morgado must prove by a preponderance of the evidence the following essential elements:(1) Warner-Lambert represented the quality of Rezulin to Dr. Salas in such a way as to induce Dr. Salas to prescribe it for plaintiff;(2) Dr. Salas actually relied on such representation; and(3) Rezulin did not conform to that representation; and(4) such non-conformance was the proximate cause of plaintiff's injuries.If Mrs. Morgado fails to prove any one of these elements by a preponderance of the evidence, you must return a verdict in favor of Warner-Lambert on the claim of breach of express warranty.Authority: |
| ; | PJI 2:140; |
| UCC § 2-213(1)(a) & (2) (2001); Davis v. New YorkHous. Auth., 246 A.D.2d 575, 668 N.Y.S.2d 391 (2d Dep't 1998); Di Prospero v. R. Brown & Sons, Inc., 110 A.D.2d 250, 494 N.Y.S.2d 181 (3d Dep't 1985).27. Defendants' Request No. 27Breach of an Express Warranty—Adequate WarningIn this case, the only evidence of representations that Warner-Lambert made to Dr. Salas were set forth in the Rezulin labeling at the time that Dr. Salas prescribed Rezulin to Mrs. Morgado. Thus, if you find that Mrs. Morgado has not carried her burden of proving by a preponderance of the evidence that Warner-Lambert's warnings about Rezulin were inadequate and that an inadequate warning was the proximate cause of Dr. Salas' prescribing decision, you must find in favor of Warner-Lambert on plaintiff's claim for a breach of an express | UCC § 2-213(1)(a) & (2) (2001); Davis v. New YorkHous. Auth., 246 A.D.2d 575, 668 N.Y.S.2d 391 (2d Dep't 1998); Di Prospero v. R. Brown & Sons, Inc., 110 A.D.2d 250, 494 N.Y.S.2d 181 (3d Dep't 1985).27. Defendants' Request No. 27Breach of an Express Warranty—Adequate WarningIn this case, the only evidence of representations that Warner-Lambert made to Dr. Salas were set forth in the Rezulin labeling at the time that Dr. Salas prescribed Rezulin to Mrs. Morgado. Thus, if you find that Mrs. Morgado has not carried her burden of proving by a preponderance of the evidence that Warner-Lambert's warnings about Rezulin were inadequate and that an inadequate warning was the proximate cause of Dr. Salas' prescribing decision, you must find in favor of Warner-Lambert on plaintiff's claim for a breach of an express |
| warranty..28. Defendants' | warranty.Authority: Tr. at 123–24, 127, 129.28. Defendants' |
| Request No. 28Implied WarrantyPlaintiff also seeks to recover based on a claim of breach of implied warranty.Under the law, a manufacturer which places its product on the market warrants that its product is reasonably fit for the ordinary purpose for which the product is used. In the case of a prescription medication, that means that the medication must be accompanied by an adequate warning to the physician.In order for you to find in favor of Mrs. Morgado on her claim of implied warranty, she has the burden of establishing, by a preponderance of the evidence, the following essential elements of her claim:(a) that Rezulin was not fit for the ordinary purpose for which it was intended because Warner-Lambert failed to warn Dr. Salas; and(b) that such failure to warn was the proximate cause of Dr. Salas' prescribing decision.If Mrs. Morgado fails to prove any one of these elements by a preponderance of the evidence, you must return a verdict in favor of Warner-Lambert on the claim of breach of implied warranty.Authority: U.C.C. § 2-314 (2001); | Request No. 28Implied WarrantyPlaintiff also seeks to recover based on a claim of breach of implied warranty.Under the law, a manufacturer which places its product on the market warrants that its product is reasonably fit for the ordinary purpose for which the product is used. In the case of a prescription medication, that means that the medication must be accompanied by an adequate warning to the physician.In order for you to find in favor of Mrs. Morgado on her claim of implied warranty, she has the burden of establishing, by a preponderance of the evidence, the following essential elements of her claim:(a) that Rezulin was not fit for the ordinary purpose for which it was intended because Warner-Lambert failed to warn Dr. Salas; and(b) that such failure to warn was the proximate cause of Dr. Salas' prescribing decision.If Mrs. Morgado fails to prove any one of these elements by a preponderance of the evidence, you must return a verdict in favor of Warner-Lambert on the claim of breach of implied warranty.Authority: U.C.C. § 2-314 (2001); |
| ; | PJI 2:142; |
| Restatement (Second) of Torts, § 402A, Comment k.29. Defendants' Request No. 29Breach of an Implied Warranty—Adequate WarningIf you find that Mrs. Morgado has not carried her burden of proving by a preponderance of the evidence that Warner-Lambert's warnings about Rezulin were inadequate and that an inadequate warning was the proximate cause of Dr. Salas' prescribing decision, you must find in favor of Warner-Lambert on plaintiff's claim for a breach of an implied warranty.Authority: Restatement (Second) of Torts, § 402A, Comment k; Martin v. Hacker, 83 N.Y.2d 1, 8–9 & n.1, 607 N.Y.S.2d 598, 601 (1993); Wolfgruber v: Upjohn Co., 72 A.D.2d 59, 62, 423 N.Y.S.2d 95, 97 (1979), | Restatement (Second) of Torts, § 402A, Comment k.29. Defendants' Request No. 29Breach of an Implied Warranty—Adequate WarningIf you find that Mrs. Morgado has not carried her burden of proving by a preponderance of the evidence that Warner-Lambert's warnings about Rezulin were inadequate and that an inadequate warning was the proximate cause of Dr. Salas' prescribing decision, you must find in favor of Warner-Lambert on plaintiff's claim for a breach of an implied warranty.Authority: Restatement (Second) of Torts, § 402A, Comment k; Martin v. Hacker, 83 N.Y.2d 1, 8–9 & n.1, 607 N.Y.S.2d 598, 601 (1993); Wolfgruber v: Upjohn Co., 72 A.D.2d 59, 62, 423 N.Y.S.2d 95, 97 (1979), |
| , .30. Defendants' | aff'd, 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980).30. Defendants' |
| Request No. 30Fraud on the FDAThere has been testimony concerning Warner-Lambert's representations and submissions to the U.S. Food and Drug Administration. You are instructed that Warner-Lambert cannot be liable for any form of damages based on a theory that it deceived, misled or committed fraud on the FDA. For purposes of your deliberations, therefore, you must disregard any testimony that Warner-Lambert deceived, misled or committed fraud on the FDA.Authority: Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001); Brooks v. Howmedica, Inc., 273 F.3d 785, 792 n.7 (8th Cir. 2001); | Request No. 30Fraud on the FDAThere has been testimony concerning Warner-Lambert's representations and submissions to the U.S. Food and Drug Administration. You are instructed that Warner-Lambert cannot be liable for any form of damages based on a theory that it deceived, misled or committed fraud on the FDA. For purposes of your deliberations, therefore, you must disregard any testimony that Warner-Lambert deceived, misled or committed fraud on the FDA.Authority: Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001); Brooks v. Howmedica, Inc., 273 F.3d 785, 792 n.7 (8th Cir. 2001); |
| , | Fitzgerald v. Smith & Nephew, Inc., 2001 WL 648610, |
| at*3 n.3 (4th Cir. June 12, 2001); Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 203 n.3 (4th Cir. 2001).31. Defendants' Request No. 31Inference From Lack of Testimony by FDA EmployeesYou may not draw any inference from the absence of any testimony by officials of the FDA. Under regulations governing the conduct of FDA officials, no officer or employee of the FDA shall give any testimony before a court of law pertaining to any function of the FDA or with respect to any information acquired in the discharge of his or her official duties.Federal regulations direct employees and officers of the FDA to respectfully decline to testify in a court of law, even under subpoena, on the grounds that it is prohibited by federal regulation.Authority: 21 C.F.R. § 20.1 (2003).32. Defendants' Request No. 32Inference From Dr. Gueriguian's RemovalYou have heard evidence concerning Dr. Gueriguian's removal as medical officer in connection with the FDA's consideration of Warnr-Lambert's application for approval to market Rezulin. Warner-Lambert had a constitutionally.protected right to notify the FDA about the conduct of Dr. Gueriguian. You may not draw any inference against Warner-Lambert from its conduct concerning Dr. Gueriguian's removal as medical officer.Authority: United Mine Workers v. Pennington, 381 U.S. 657 (1965); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); Bradley v. Computer Sciences Corp., 643 F.2d 1029, 1033 (4th Cir. 1981).33. Defendants' Request No. 33Failure to Warn—Proximate Cause—Medical CausationIf you find by a preponderance of the evidence that Warner-Lambert's Rezulin warnings were inadequate and that Dr. Salas would have changed her prescribing decision if the information that plaintiff claims was omitted had been provided, you must also decide whether plaintiff proved by a preponderance of the evidence that Rezulin proximately caused Mrs. Morgado's claimed injuries. It is not disputed that Mrs. Morgado experienced jaundice and liver inflammation from Rezulin. Mrs. Morgado also contends that she has continuing liver injury caused by her Rezulin treatment. Warner-Lambert contends that Mrs. Morgado does not have a continuing liver injury caused by her Rezulin treatment.Authority: Sosna v. American Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549, (1st Dep't. 2002).34. Defendants' Request No. 34Proximate CauseIn my instruction, I used the phrase “proximate cause.” This is a phrase which you have heard throughout this charge, in connection with all of plaintiff's claims.For an act or omission to be the proximate cause of an injury, you must find that it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. As with all the other elements of this claim, the burden is on the plaintiff to prove such proximate cause by a preponderance of the evidence.By this instruction, I do not mean to imply one way or another whether Rezulin did or did not cause plaintiff any injury but am simply explaining a legal term for your better understanding.Authority: | at*3 n.3 (4th Cir. June 12, 2001); Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 203 n.3 (4th Cir. 2001).31. Defendants' Request No. 31Inference From Lack of Testimony by FDA EmployeesYou may not draw any inference from the absence of any testimony by officials of the FDA. Under regulations governing the conduct of FDA officials, no officer or employee of the FDA shall give any testimony before a court of law pertaining to any function of the FDA or with respect to any information acquired in the discharge of his or her official duties.Federal regulations direct employees and officers of the FDA to respectfully decline to testify in a court of law, even under subpoena, on the grounds that it is prohibited by federal regulation.Authority: 21 C.F.R. § 20.1 (2003).32. Defendants' Request No. 32Inference From Dr. Gueriguian's RemovalYou have heard evidence concerning Dr. Gueriguian's removal as medical officer in connection with the FDA's consideration of Warnr-Lambert's application for approval to market Rezulin. Warner-Lambert had a constitutionally.protected right to notify the FDA about the conduct of Dr. Gueriguian. You may not draw any inference against Warner-Lambert from its conduct concerning Dr. Gueriguian's removal as medical officer.Authority: United Mine Workers v. Pennington, 381 U.S. 657 (1965); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); Bradley v. Computer Sciences Corp., 643 F.2d 1029, 1033 (4th Cir. 1981).33. Defendants' Request No. 33Failure to Warn—Proximate Cause—Medical CausationIf you find by a preponderance of the evidence that Warner-Lambert's Rezulin warnings were inadequate and that Dr. Salas would have changed her prescribing decision if the information that plaintiff claims was omitted had been provided, you must also decide whether plaintiff proved by a preponderance of the evidence that Rezulin proximately caused Mrs. Morgado's claimed injuries. It is not disputed that Mrs. Morgado experienced jaundice and liver inflammation from Rezulin. Mrs. Morgado also contends that she has continuing liver injury caused by her Rezulin treatment. Warner-Lambert contends that Mrs. Morgado does not have a continuing liver injury caused by her Rezulin treatment.Authority: Sosna v. American Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549, (1st Dep't. 2002).34. Defendants' Request No. 34Proximate CauseIn my instruction, I used the phrase “proximate cause.” This is a phrase which you have heard throughout this charge, in connection with all of plaintiff's claims.For an act or omission to be the proximate cause of an injury, you must find that it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. As with all the other elements of this claim, the burden is on the plaintiff to prove such proximate cause by a preponderance of the evidence.By this instruction, I do not mean to imply one way or another whether Rezulin did or did not cause plaintiff any injury but am simply explaining a legal term for your better understanding.Authority: |
| ; | PJI 2:70; |
| Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 403–04 (1983).35. Defendants' Request No. 35Possible Cause Is InsufficientProximate cause does not mean a possible cause. The mere possibility that Rezulin may have caused Mrs. Morgado's injuries is not enough to find Warner-Lambert liable. Mrs. Morgado must prove to a reasonable degree of medical certainty that any continuing liver injury was caused by Rezulin.Authority: Miller v. Nat'l Cabinet Co., 8 N.Y.2d 277, 284, 204 N.Y.S.2d 129, 133–34, 139 (1960).36. Defendants' Request No. 36Generally Accepted Scientific EvidenceThe parties agree that a biopsy has not been performed on Mrs. Morgado. Plaintiff must establish that Rezulin proximately caused a continuing liver injury to a reasonable degree of medical certainty based on evidence that is generally accepted as reliable within the scientific community. If you find that plaintiff's contention of continuing liver injury is not based on evidence that is generally accepted as reliable within the scientific community, then you must find that Rezulin was not the proximate cause of a continuing liver injury to Mrs. Morgado.Authority: People v. Wernick, 89 N.Y.2d 111, 117, 651 N.Y.S.2d 392, 395 (1996); People v. Hughes, 59 N.Y.2d 523, 537, 466 N.Y.S.2d 255, 261 (1983); DeLong v. County of Erie, 455 N.Y.S.2d 887, 89 A.D.2d 376, (1982); Oppenheim v. United Charities of New York, 698 N.Y.S.2d 144, 266 A.D.2d 116, (1st Dep't 1999) (mem).37. Defendants' Request No. 37Consider Damages Only If NecessaryIf you determine that the plaintiff has not proven, by the required burden of proof, each and every element of a claim against the defendant, you should return a verdict in favor of the defendant on that claim. If you determine that the plaintiff has not proven, by the required burden of proof, each and every element of any claim against the defendant, you should return a verdict in favor of the defendant on all claims. Do not consider or try to value plaintiff's alleged damages.If you find that the plaintiff has proven each and every element of one or more of her claims by the required burden of proof for that particular claim, then you must determine the damages to which the plaintiff is entitled, if any. However, you should not infer that the plaintiff is entitled to recover damages merely because I am instructing you on the elements of damages. It is exclusively your function to decide upon liability, and I am instructing you on damages only so that you will have guidance should you decide that the plaintiff is entitled to recovery.Authority: | Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 403–04 (1983).35. Defendants' Request No. 35Possible Cause Is InsufficientProximate cause does not mean a possible cause. The mere possibility that Rezulin may have caused Mrs. Morgado's injuries is not enough to find Warner-Lambert liable. Mrs. Morgado must prove to a reasonable degree of medical certainty that any continuing liver injury was caused by Rezulin.Authority: Miller v. Nat'l Cabinet Co., 8 N.Y.2d 277, 284, 204 N.Y.S.2d 129, 133–34, 139 (1960).36. Defendants' Request No. 36Generally Accepted Scientific EvidenceThe parties agree that a biopsy has not been performed on Mrs. Morgado. Plaintiff must establish that Rezulin proximately caused a continuing liver injury to a reasonable degree of medical certainty based on evidence that is generally accepted as reliable within the scientific community. If you find that plaintiff's contention of continuing liver injury is not based on evidence that is generally accepted as reliable within the scientific community, then you must find that Rezulin was not the proximate cause of a continuing liver injury to Mrs. Morgado.Authority: People v. Wernick, 89 N.Y.2d 111, 117, 651 N.Y.S.2d 392, 395 (1996); People v. Hughes, 59 N.Y.2d 523, 537, 466 N.Y.S.2d 255, 261 (1983); DeLong v. County of Erie, 455 N.Y.S.2d 887, 89 A.D.2d 376, (1982); Oppenheim v. United Charities of New York, 698 N.Y.S.2d 144, 266 A.D.2d 116, (1st Dep't 1999) (mem).37. Defendants' Request No. 37Consider Damages Only If NecessaryIf you determine that the plaintiff has not proven, by the required burden of proof, each and every element of a claim against the defendant, you should return a verdict in favor of the defendant on that claim. If you determine that the plaintiff has not proven, by the required burden of proof, each and every element of any claim against the defendant, you should return a verdict in favor of the defendant on all claims. Do not consider or try to value plaintiff's alleged damages.If you find that the plaintiff has proven each and every element of one or more of her claims by the required burden of proof for that particular claim, then you must determine the damages to which the plaintiff is entitled, if any. However, you should not infer that the plaintiff is entitled to recover damages merely because I am instructing you on the elements of damages. It is exclusively your function to decide upon liability, and I am instructing you on damages only so that you will have guidance should you decide that the plaintiff is entitled to recovery.Authority: |
| .38. Defendants' | PJI 2:277.38. Defendants' |
| Request No. 38Multiple Claims—One RecoveryI have a cautionary instruction before I define the types of damages you may award if you find that the plaintiff has proven liability according to the standards I have explained.You should not award compensatory damages more than once for the same injury. For example, if plaintiff were to prevail on two claims and establish a one dollar injury, you could not award her one dollar compensatory damages on each claim—she is only entitled to be made whole again, not to recover more than she lost.Authority: Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644 (1973).39. Defendants' Request No. 39Damages—Consider All EffectsIn deciding whether plaintiff suffered any injury from her treatment with Rezulin, you must consider all of the effects from her Rezulin treatment. You must consider not only her alleged injuries, but also any benefit which she received. If you find that plaintiff benefitted from her treatment with Rezulin, and if you find that those benefits outweighed her alleged injuries, you must find in favor of the defendant.Authority: RESTATEMENT (SECOND) OF TORTS § 920 (1979).40. Defendants' Request No. 40Damages Not To Be SpeculativeYou may only award damages which have been proven with reasonable certainty. You may not award damages for speculative or conjectural losses, but only for actual loss sustained or loss that will definitely be sustained in the future.It is completely within your discretion as to which damage claims you accept and which you reject. If you decide that plaintiff has not met her burden of proof as to the existence and amount of any item of damages or injuries claimed, then you should not consider these items nor should you return a verdict including those damages or injuries which you have rejected.Authority: See | Request No. 38Multiple Claims—One RecoveryI have a cautionary instruction before I define the types of damages you may award if you find that the plaintiff has proven liability according to the standards I have explained.You should not award compensatory damages more than once for the same injury. For example, if plaintiff were to prevail on two claims and establish a one dollar injury, you could not award her one dollar compensatory damages on each claim—she is only entitled to be made whole again, not to recover more than she lost.Authority: Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644 (1973).39. Defendants' Request No. 39Damages—Consider All EffectsIn deciding whether plaintiff suffered any injury from her treatment with Rezulin, you must consider all of the effects from her Rezulin treatment. You must consider not only her alleged injuries, but also any benefit which she received. If you find that plaintiff benefitted from her treatment with Rezulin, and if you find that those benefits outweighed her alleged injuries, you must find in favor of the defendant.Authority: RESTATEMENT (SECOND) OF TORTS § 920 (1979).40. Defendants' Request No. 40Damages Not To Be SpeculativeYou may only award damages which have been proven with reasonable certainty. You may not award damages for speculative or conjectural losses, but only for actual loss sustained or loss that will definitely be sustained in the future.It is completely within your discretion as to which damage claims you accept and which you reject. If you decide that plaintiff has not met her burden of proof as to the existence and amount of any item of damages or injuries claimed, then you should not consider these items nor should you return a verdict including those damages or injuries which you have rejected.Authority: See |
| , | PJI 2:277, |
| Matter of Rothko's Estate, 43 N.Y.2d 305, 401 N.Y.S.2d 449 (1977); Curiale v. Peat, Marwick, Mitchell & Co., 630 N.Y.S.2d 996, 214 A.D.2d 16 (1st Dep't 1995).41. Defendants' Request No. 41Compensatory DamagesIf you find liability against the defendant on any claim, under the instructions I have given you, then you must award the plaintiff sufficient damages to compensate her for all losses resulting from the injury proximately caused by the defendant's conduct. These are known as “compensatory damages.” Compensatory damages seek to make the plaintiff whole—that is, to compensate the plaintiff for any loss that has been suffered.Authority: Adapted from | Matter of Rothko's Estate, 43 N.Y.2d 305, 401 N.Y.S.2d 449 (1977); Curiale v. Peat, Marwick, Mitchell & Co., 630 N.Y.S.2d 996, 214 A.D.2d 16 (1st Dep't 1995).41. Defendants' Request No. 41Compensatory DamagesIf you find liability against the defendant on any claim, under the instructions I have given you, then you must award the plaintiff sufficient damages to compensate her for all losses resulting from the injury proximately caused by the defendant's conduct. These are known as “compensatory damages.” Compensatory damages seek to make the plaintiff whole—that is, to compensate the plaintiff for any loss that has been suffered.Authority: Adapted from |
| ; , | PJI 2:280; PJI 2:277, |
| McDougal v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937 (1989).42. Defendants' Request No. 42Damages: Expenses IncurredAll of Mrs. Morgado's medical expenses were covered by insurance. Therefore, you may not award medical expenses as damages.Authority: | McDougal v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937 (1989).42. Defendants' Request No. 42Damages: Expenses IncurredAll of Mrs. Morgado's medical expenses were covered by insurance. Therefore, you may not award medical expenses as damages.Authority: |
| N.Y. C.P.L.R. 4545(c) |
| (McKinney 2003).43. Defendants' Request No. 43Income TaxesIf your verdict is in favor of plaintiff, plaintiff will not be required to pay to income taxes on the award. Thus, in fixing the amount of your award, you must not add to or subtract from the award any amount on account of income taxes.Authority: | (McKinney 2003).43. Defendants' Request No. 43Income TaxesIf your verdict is in favor of plaintiff, plaintiff will not be required to pay to income taxes on the award. Thus, in fixing the amount of your award, you must not add to or subtract from the award any amount on account of income taxes.Authority: |
| .44. Defendants' | PJI 2:280.2.44. Defendants' |
| Request No. 44General Business Law § 349: ElementsMrs. Morgado has also alleged that Warner-Lambert violated Section 349 of the General Business Law.In order for Mrs. Morgado to prevail on her claim under Section 349 of the General Business Law, she has the burden of establishing, by a preponderance of the evidence, the following essential elements of her claim:(1) that Warner-Lambert engaged in a deceptive act or practice concerning Rezulin that misled Dr. Salas;(2) that such deceptive act or practice was misleading in a material respect;(3) that Dr. Salas was in fact misled by the deceptive act or practice; and(4) that the deceptive act or practice caused Dr. Salas' prescribing decision.If Mrs. Morgado fails to prove any one of these elements by a preponderance of the evidence, you must return a verdict in favor of Warner-Lambert on the consumer protection claim.Authority: N.Y. GEN. BUS. LAW § 349 (McKinney 2003); Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 961, 598 N.Y.S.2d 761, 762 (1993); Stutman v. Chemical Bank, 95 N.Y.2d 24, 31, 709 N.Y.S.2d 892, 897 (2000); Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532 (1995).45. Defendants' Request No. 45General Business Law § 349: Unseen AdvertisementsIn deciding whether or not Mrs. Morgado has met her burden of proof on this claim, you may only consider statements about Rezulin made by Warner-Lambert that were actually seen or heard by Dr. Salas. Thisis because Dr. Salas could not actually be misled by statements from Warner-Lambert that she never saw or heard. If Dr. Salas was not misled by those statements, there is no way that such statements could have caused her prescribing decision.In this case, the only statements about Rezulin that were ever seen by Dr. Salas are the Rezulin label, and Dear Doctor letters that were sent by Warner-Lambert to Dr. Salas. Thus; you may not consider evidence of any Warner-Lambert advertisements that were shown to you during the course of this trial. Those other advertisements are irrelevant to your determination of whether Dr. Salas was actually misled by a statement by Warner-Lambert, as well as to your determination of whether any deceptive act or practice caused Dr. Salas' prescribing decision.Authority: N.Y. GEN. BUS. LAW § 349 (McKinney 2003); Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 961, 598 N.Y.S.2d 761, 762 (1993); Stutman v. Chemical Bank, 95 N.Y.2d 24, 31, 709 N.Y.S.2d 892, 897 (2000); Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532 (1995); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 698 N.Y.S.2d 615 (1999).46. Defendants' Request No. 46General Business Law § 349—Statutory DefenseIt is a complete defense to a claim under Section 349 of the General Business Law that the act or practice plaintiff contends is deceptive, is subject to and complies with the rules and regulations of a federal agency, such as the FDA.As you know, Rezulin was a prescription medication, which means that its marketing and labeling were subject to and complied with the rules and regulations of the FDA. Under the law, Warner-Lambert is entitled to a verdict in its favor if you find that the allegedly misleading statements at issue, consisting of the Rezulin label and the Dear Doctor letters, were subject to and complied with the rules and regulations of the FDA.Thus, if you find that the Rezulin label and the Dear Doctor letters were subject to and complied with FDA rules and regulations, then you must return a verdict in favor of Warner-Lambert on plaintiff's claim under General Business Law § 349(d), even if you find that any statements in the label or the Dear Doctor letters were, in fact, misleading.Authority: N.Y. GEN. BUS. LAW § 349(d) (McKinney 2003); American Home Products Corp. v. Johnson & Johnson, 672 F. Supp. 135, 145 (S.D.N.Y. 1987). Note: This instruction is submitted without prejudice to Warner-Lambert's contention that plaintiff's claims are pre-empted by virtue of FDA approval. Buckman Co. v. Plaintiff's' Legal Comm., 531 U.S. 341, 348 (2001); Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 886 (2000).47. Defendants' Request No. 47Damages—GBL | Request No. 44General Business Law § 349: ElementsMrs. Morgado has also alleged that Warner-Lambert violated Section 349 of the General Business Law.In order for Mrs. Morgado to prevail on her claim under Section 349 of the General Business Law, she has the burden of establishing, by a preponderance of the evidence, the following essential elements of her claim:(1) that Warner-Lambert engaged in a deceptive act or practice concerning Rezulin that misled Dr. Salas;(2) that such deceptive act or practice was misleading in a material respect;(3) that Dr. Salas was in fact misled by the deceptive act or practice; and(4) that the deceptive act or practice caused Dr. Salas' prescribing decision.If Mrs. Morgado fails to prove any one of these elements by a preponderance of the evidence, you must return a verdict in favor of Warner-Lambert on the consumer protection claim.Authority: N.Y. GEN. BUS. LAW § 349 (McKinney 2003); Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 961, 598 N.Y.S.2d 761, 762 (1993); Stutman v. Chemical Bank, 95 N.Y.2d 24, 31, 709 N.Y.S.2d 892, 897 (2000); Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532 (1995).45. Defendants' Request No. 45General Business Law § 349: Unseen AdvertisementsIn deciding whether or not Mrs. Morgado has met her burden of proof on this claim, you may only consider statements about Rezulin made by Warner-Lambert that were actually seen or heard by Dr. Salas. Thisis because Dr. Salas could not actually be misled by statements from Warner-Lambert that she never saw or heard. If Dr. Salas was not misled by those statements, there is no way that such statements could have caused her prescribing decision.In this case, the only statements about Rezulin that were ever seen by Dr. Salas are the Rezulin label, and Dear Doctor letters that were sent by Warner-Lambert to Dr. Salas. Thus; you may not consider evidence of any Warner-Lambert advertisements that were shown to you during the course of this trial. Those other advertisements are irrelevant to your determination of whether Dr. Salas was actually misled by a statement by Warner-Lambert, as well as to your determination of whether any deceptive act or practice caused Dr. Salas' prescribing decision.Authority: N.Y. GEN. BUS. LAW § 349 (McKinney 2003); Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 961, 598 N.Y.S.2d 761, 762 (1993); Stutman v. Chemical Bank, 95 N.Y.2d 24, 31, 709 N.Y.S.2d 892, 897 (2000); Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532 (1995); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 698 N.Y.S.2d 615 (1999).46. Defendants' Request No. 46General Business Law § 349—Statutory DefenseIt is a complete defense to a claim under Section 349 of the General Business Law that the act or practice plaintiff contends is deceptive, is subject to and complies with the rules and regulations of a federal agency, such as the FDA.As you know, Rezulin was a prescription medication, which means that its marketing and labeling were subject to and complied with the rules and regulations of the FDA. Under the law, Warner-Lambert is entitled to a verdict in its favor if you find that the allegedly misleading statements at issue, consisting of the Rezulin label and the Dear Doctor letters, were subject to and complied with the rules and regulations of the FDA.Thus, if you find that the Rezulin label and the Dear Doctor letters were subject to and complied with FDA rules and regulations, then you must return a verdict in favor of Warner-Lambert on plaintiff's claim under General Business Law § 349(d), even if you find that any statements in the label or the Dear Doctor letters were, in fact, misleading.Authority: N.Y. GEN. BUS. LAW § 349(d) (McKinney 2003); American Home Products Corp. v. Johnson & Johnson, 672 F. Supp. 135, 145 (S.D.N.Y. 1987). Note: This instruction is submitted without prejudice to Warner-Lambert's contention that plaintiff's claims are pre-empted by virtue of FDA approval. Buckman Co. v. Plaintiff's' Legal Comm., 531 U.S. 341, 348 (2001); Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 886 (2000).47. Defendants' Request No. 47Damages—GBL |
| If | Section 349If |
| you find liability against the defendant on plaintiff's claim under General Business Law | you find liability against the defendant on plaintiff's claim under General Business Law |
| , | Section 349, |
| then you may award plaintiff her actual damages or $50 whichever is greater. Actual damages means the amount of her costs to purchase Rezulin that were not reimbursed by insurance or some other source, if any.Authority: N.Y. GEN. BUS. LAW § 349(H) (McKinney 2003).48. Defendants' Request No. 48Fraud—Clear and ConvincingPlaintiff also seeks to recover based on a claim of fraud, claiming that Warner-Lambert misrepresented and/or wrongfully withheld material information relating to Rezulin.As I have explained earlier, the plaintiff has the burden of proof with respect to each element of her claims. For all of the claims that I have instructed you on so far, plaintiff's burden has been to establish each element by a “preponderance of the evidence,” and I instructed earlier what that means. In order to find in favor of Mrs. Morgado on a claim of fraud, however, she must establish each element by “clear and convincing evidence,” which is a higher standard of proof than “preponderance of the evidence.”“Clear and convincing evidence” means evidence that satisfies you that there is a high degree of probability that there was fraud as I will define it for you shortly. Thus, to decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff's favor. A party who must prove her case by a preponderance of the evidence only need satisfy you that the evidence supporting her case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what she claims is what actually happened.Authority: Adapted from | then you may award plaintiff her actual damages or $50 whichever is greater. Actual damages means the amount of her costs to purchase Rezulin that were not reimbursed by insurance or some other source, if any.Authority: N.Y. GEN. BUS. LAW § 349(H) (McKinney 2003).48. Defendants' Request No. 48Fraud—Clear and ConvincingPlaintiff also seeks to recover based on a claim of fraud, claiming that Warner-Lambert misrepresented and/or wrongfully withheld material information relating to Rezulin.As I have explained earlier, the plaintiff has the burden of proof with respect to each element of her claims. For all of the claims that I have instructed you on so far, plaintiff's burden has been to establish each element by a “preponderance of the evidence,” and I instructed earlier what that means. In order to find in favor of Mrs. Morgado on a claim of fraud, however, she must establish each element by “clear and convincing evidence,” which is a higher standard of proof than “preponderance of the evidence.”“Clear and convincing evidence” means evidence that satisfies you that there is a high degree of probability that there was fraud as I will define it for you shortly. Thus, to decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff's favor. A party who must prove her case by a preponderance of the evidence only need satisfy you that the evidence supporting her case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what she claims is what actually happened.Authority: Adapted from |
| .49. Defendants' | PJI 1:64.49. Defendants' |
| Request No. 49Fraud—ElementsIn order for Mrs. Morgado to prevail on her claim of fraud, she has the burden of establishing, by clear and convincing evidence, the following essential elements of her claim:(1) Warner-Lambert made a material false representation and/or omitted material information regarding Rezulin to Dr. Salas; and(2) at the time that the representation or omission was made, defendants knew that the representation and/or omission was false or misleading; and(3) Warner-Lambert intended to deceive Dr. Salas, as plaintiff's prescribing physician, by that misrepresentation and/or omission; and(4) Dr. Salas reasonably and justifiably relied on the representation and/or omission; and(5) Dr. Salas' reliance on the misrepresentation and/or omission was a proximate cause of Mrs. Morgado's injury.If Mrs. Morgado fails to prove any one of these elements by clear and convincing evidence, you must return a verdict in favor of defendants on the claim of fraud.Authority: Adapted from | Request No. 49Fraud—ElementsIn order for Mrs. Morgado to prevail on her claim of fraud, she has the burden of establishing, by clear and convincing evidence, the following essential elements of her claim:(1) Warner-Lambert made a material false representation and/or omitted material information regarding Rezulin to Dr. Salas; and(2) at the time that the representation or omission was made, defendants knew that the representation and/or omission was false or misleading; and(3) Warner-Lambert intended to deceive Dr. Salas, as plaintiff's prescribing physician, by that misrepresentation and/or omission; and(4) Dr. Salas reasonably and justifiably relied on the representation and/or omission; and(5) Dr. Salas' reliance on the misrepresentation and/or omission was a proximate cause of Mrs. Morgado's injury.If Mrs. Morgado fails to prove any one of these elements by clear and convincing evidence, you must return a verdict in favor of defendants on the claim of fraud.Authority: Adapted from |
| PJI 2:230 |
| and | and |
| .50. Defendants' | PJI 3:20.50. Defendants' |
| Request No. 50Fraud—Adequacy of WarningIn this case, the only evidence of representations that Warner-Lambert made to Dr. Salas were set forth in the Rezulin labeling at the time that Dr. Salas prescribed Rezulin to Mrs. Morgado. Thus, if you find that Mrs. Morgado has not carried her burden of proving by a preponderance of the evidence that Warner-Lambert's warnings about Rezulin were inadequate and that an inadequate warning was the proximate cause of Dr. Salas' prescribing decision, you must find in favor of Warner-Lambert on plaintiff's claim for fraud. If you find that Mrs. Morgado has carried her burden of proving those elements by a preponderance of the evidence, then you must consider whether Mrs. Morgado has carried her burden of proving each element of her fraud claim by clear and convincing | Request No. 50Fraud—Adequacy of WarningIn this case, the only evidence of representations that Warner-Lambert made to Dr. Salas were set forth in the Rezulin labeling at the time that Dr. Salas prescribed Rezulin to Mrs. Morgado. Thus, if you find that Mrs. Morgado has not carried her burden of proving by a preponderance of the evidence that Warner-Lambert's warnings about Rezulin were inadequate and that an inadequate warning was the proximate cause of Dr. Salas' prescribing decision, you must find in favor of Warner-Lambert on plaintiff's claim for fraud. If you find that Mrs. Morgado has carried her burden of proving those elements by a preponderance of the evidence, then you must consider whether Mrs. Morgado has carried her burden of proving each element of her fraud claim by clear and convincing |
| evidence..51. Defendants' | evidence.Authority: Tr. at 123–24, 127, 129.51. Defendants' |
| Request No. 51Fraud—DamagesIf you find that plaintiff has proven each element of her fraud claim by clear and convincing evidence, you may award damages. Compensatory damages in a fraud case are limited to damages for pecuniary loss, which means sums of money that the plaintiff lost as a result of the fraud that were not reimbursed by insurance or another source, if any.Authority: Rivera v. Wyckoff Heights Hosp., 584 N.Y.S.2d 648, 184 A.D.2d 558, 561 (2d Dep't 1992); Sanders v. Rosen, 159 Misc. 2d 563, 571, 605 N.Y.S.2d 805, 810 (Sup. Ct. N.Y. Co. 1993); Weissman v. Dow Corning, 892 F. Supp. 510, 515–16 (S.D.N.Y. 1995); | Request No. 51Fraud—DamagesIf you find that plaintiff has proven each element of her fraud claim by clear and convincing evidence, you may award damages. Compensatory damages in a fraud case are limited to damages for pecuniary loss, which means sums of money that the plaintiff lost as a result of the fraud that were not reimbursed by insurance or another source, if any.Authority: Rivera v. Wyckoff Heights Hosp., 584 N.Y.S.2d 648, 184 A.D.2d 558, 561 (2d Dep't 1992); Sanders v. Rosen, 159 Misc. 2d 563, 571, 605 N.Y.S.2d 805, 810 (Sup. Ct. N.Y. Co. 1993); Weissman v. Dow Corning, 892 F. Supp. 510, 515–16 (S.D.N.Y. 1995); |
| N.Y. C.P.L.R. 4545 (c) |
| (McKinney 2003).52. Defendants' Request No. 52Punitive Damages—GenerallyNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.If, but only if, you find defendant is liable for plaintiff's injuries, the law allows you, but does not require you, to award punitive damages.You may award punitive damages if you find that the act of the defendant that caused plaintiff's injury was wanton and reckless. An act is wanton and reckless when it is done in such a way and under such circumstances as to show conscious indifference and utter disregard for its effect upon the safety and rights of others.You may also only award punitive damages if the plaintiff proves by clear, unequivocal and convincing evidence that the defendant's conduct was evil and reprehensible, Snot merely unreasonable. As I instructed earlier, “clear and convincing” is a higher burden of proof than “preponderance of the evidence.”To clarify my instructions: even if plaintiff establishes, by clear and convincing evidence, that her injury resulted from wanton and reckless conduct on the part of Warner-Lambert, the awarding of punitive damages is still within your discretion—you are not required to award them. Punitive damages are not to compensate the plaintiff for any injury she may have suffered—that is the purpose of compensatory damages, and the amount that you may award to the plaintiff for compensatory damages will fully compensate her for her injuries. The purposes of punitive damages is to punish a defendant for shocking and outrageous conduct and to set an example in order to deter him and others from committing similar acts in the future.The recklessness that will give rise to punitive damages must be close to criminality. A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur. The risk must be of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. Punitive damages are appropriate only for especially shocking and outrageous misconduct.If you decided to award punitive damages, you must use sound reason in setting the amount — it must not reflect bias, prejudice, or sympathy toward any party. If you determine that defendant's conduct justifies an award of punitive damages, you will be asked later to determine a punitive damages amount.Authority: Adapted from | (McKinney 2003).52. Defendants' Request No. 52Punitive Damages—GenerallyNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.If, but only if, you find defendant is liable for plaintiff's injuries, the law allows you, but does not require you, to award punitive damages.You may award punitive damages if you find that the act of the defendant that caused plaintiff's injury was wanton and reckless. An act is wanton and reckless when it is done in such a way and under such circumstances as to show conscious indifference and utter disregard for its effect upon the safety and rights of others.You may also only award punitive damages if the plaintiff proves by clear, unequivocal and convincing evidence that the defendant's conduct was evil and reprehensible, Snot merely unreasonable. As I instructed earlier, “clear and convincing” is a higher burden of proof than “preponderance of the evidence.”To clarify my instructions: even if plaintiff establishes, by clear and convincing evidence, that her injury resulted from wanton and reckless conduct on the part of Warner-Lambert, the awarding of punitive damages is still within your discretion—you are not required to award them. Punitive damages are not to compensate the plaintiff for any injury she may have suffered—that is the purpose of compensatory damages, and the amount that you may award to the plaintiff for compensatory damages will fully compensate her for her injuries. The purposes of punitive damages is to punish a defendant for shocking and outrageous conduct and to set an example in order to deter him and others from committing similar acts in the future.The recklessness that will give rise to punitive damages must be close to criminality. A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur. The risk must be of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. Punitive damages are appropriate only for especially shocking and outrageous misconduct.If you decided to award punitive damages, you must use sound reason in setting the amount — it must not reflect bias, prejudice, or sympathy toward any party. If you determine that defendant's conduct justifies an award of punitive damages, you will be asked later to determine a punitive damages amount.Authority: Adapted from |
| ; | PJI 2:278; |
| Sladick v. Hudson General Corp., 641 N.Y.S.2d 270, 271, 226 A.D.2d 263 (1st Dep't 1996); Camillo v. Geer, 587 N.Y.S.2d 306, 309, 185 A.D.2d 192, 193–94 (1st Dep't 1992); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 843, 851 (2d Cir. 1967); Smith v. Little, Brown & Co., 273 F. Supp. 870, 872 (S.D.N.Y. 1967), | Sladick v. Hudson General Corp., 641 N.Y.S.2d 270, 271, 226 A.D.2d 263 (1st Dep't 1996); Camillo v. Geer, 587 N.Y.S.2d 306, 309, 185 A.D.2d 192, 193–94 (1st Dep't 1992); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 843, 851 (2d Cir. 1967); Smith v. Little, Brown & Co., 273 F. Supp. 870, 872 (S.D.N.Y. 1967), |
| , .53. Defendants' | aff'd, 396 F.2d 150 (2d Cir. 1968).53. Defendants' |
| Request No. 53Punitive Damages—Criminal IntentNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Punitive damages may only be awarded where the defendants have committed acts that imply a criminal indifference to civil obligations, which means that the defendants' conduct must resemble criminal conduct. If you find in favor of the plaintiff, but you do not find that Warner-Lambert committed acts that imply a criminal indifference to civil obligations, then you may not award punitive damages.Authority: N.Y.U. v. Continental Ins. Co., 87 N.Y.2d 308, 315–16, 639 N.Y.S.2d 283, 287 (1995); Heller v. Louis Provenzano, Inc., N.Y.S.2d, 2003 WL 462394, *2 (1st Dep't Feb. 25, 2003); Maitrejean v. Levon Props. Corp., 448 N.Y.S.2d 46, 47, 87 A.D.2d 605–606 (2d Dep't 1982); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 843 (2d Cir. 1967).54. Defendants' Request No. 54Punitive Damages: Mixed Commercial and Altruistic MotivesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You have heard evidence from both plaintiff and defendant regarding Warner-Lambert's conduct in connection with the development, approval and marketing of Rezulin. You have also heard evidence of Warner-Lambert's motivations for that conduct. In other words, you have heard evidence of why it is that Warner-Lambert may or may not have acted in a particular way in connection with the development, approval, and marketing of Rezulin.In determining whether to award punitive damages, you may consider whether Warner-Lambert's conduct was motivated by a desire to benefit victims of diabetes. If you find that Warner-Lambert's conduct was motivated at least in part by a desire to benefit victims of diabetes, then its conduct was not wanton and reckless, and you may not award punitive damages.Authority: Adaptedfrom Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967).55. Defendants' Request No. 55Punitive Damages—Commercial MotiveNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You have heard evidence in this case that Warner-Lambert's motivation to market Rezulin was to make a profit. Warner-Lambert had a duty to its shareholders to seek profits. Profit-seeking is a hallmark of our free enterprise system and enables pharmaceutical manufacturers to develop medications to treat serious illnesses. You cannot award punitive damages solely because you find that Warner-Lambert was motivated by the desire to obtain profits.Authority: Adaptedfrom Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 846 (2d Cir. 1967).56. Defendants' Request No. 56Punitive Damages: Adequate WarningNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.If you find that the Rezulin label did not adequately warn doctors about the degree of risk of liver injury but at least warned doctors about the possibility of liver injury, then Warner-Lambert was not wanton and reckless in its warning to doctors about that risk, and you may not award punitive damages.Furthermore, even if you find that the warning, or parts of the warning, were false or fraudulent in a technical sense, this is not enough by itself for you to find that an award of punitive damages is appropriate. If you do not find that any false or fraudulent statement was made with an almost criminal indifference and utter disregard for its effect upon the safety and rights of others, then you may not award punitive damages.Authority: Adaptedfrom Nader v. Allegheny Airlines, Inc., 626 F.2d 1031, 1035 (D.C. Cir. 1980); Sharpata v. Town of Islip, 56 N.Y.2d 332, 335, 452 N.Y.S.2d 347, 349 (1982); Maitrejean v. Levon Prop. Corp., 448 N.Y.S.2d 46, 87 A.D.2d 605 (2d Dep't 1982).57. Defendants' Request No. 57Punitive Damages: Genuine Medical Dispute As To WarningNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You have heard testimony from plaintiff's experts that the Rezulin label did not adequately warn doctors about the risk of liver injury. You have also heard testimony from defendants' experts that the Rezulin label did in fact adequately warn doctors about the risk of liver injury. If you find that there is a legitimate disagreement among the experts concerning the adequacy of the Rezulin warnings, that is, if you believe that their disagreement about the warnings is a reasonable one that simply reflects differences in their professional judgments, then you may not award punitive damages.Authority: Adaptedfrom Satcher v. Honda Motor Co., 52 F.3d 1311, 1317 (5th Cir. 1995); Berroyer v. Hertz, 672 F.2d 334, 341–342 (3d Cir. 1982); Loitz v. Remington Arms Co., 407, 563 N.E.2d 397, 407 (Ill. 1990); AM/ PAT Midwest, Inc. v. Illinois Tool Works Inc., 896 F.2d 1035, 1044 (7th Cir. 1990).58. Defendants' Request No. 58Punitive Damages: FDA ApprovalNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Evidence has been presented in this case that, for the period of time when plaintiff was prescribed Rezulin, the FDA had approved Rezulin for marketing in the United States, including the label, which contained the warnings concerning potential side effects of Rezulin. You are instructed that, under federal law, FDA approval means that the FDA concluded that:1. Warner-Lambert complied with all applicable regulations; and that2. Rezulin was safe and effective when accompanied by FDA-approved labeling.If you find that the FDA had approved Rezulin and the Rezulin labeling, then Warner-Lambert did not act wantonly or recklessly in providing warnings about the risks of Rezulin, and you may not award punitive damages.Authority: Richards v. Michelin Tire Corp., 21 F.3d 1048, 1059 (11th Cir. 1994); Nader v. Allegheny Airlines, Inc., 626 F.2d 1031, 1035 (D.C. Cir. 1980).Note: This instruction is submitted without prejudice to Warner-Lambert's contention that plaintiff's claims are pre-empted by virtue of FDA approval. Buckman Co. v. Plaintiff's' Legal Comm., 531 U.S. 341, 348 (2001); Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 886 | Request No. 53Punitive Damages—Criminal IntentNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Punitive damages may only be awarded where the defendants have committed acts that imply a criminal indifference to civil obligations, which means that the defendants' conduct must resemble criminal conduct. If you find in favor of the plaintiff, but you do not find that Warner-Lambert committed acts that imply a criminal indifference to civil obligations, then you may not award punitive damages.Authority: N.Y.U. v. Continental Ins. Co., 87 N.Y.2d 308, 315–16, 639 N.Y.S.2d 283, 287 (1995); Heller v. Louis Provenzano, Inc., N.Y.S.2d, 2003 WL 462394, *2 (1st Dep't Feb. 25, 2003); Maitrejean v. Levon Props. Corp., 448 N.Y.S.2d 46, 47, 87 A.D.2d 605–606 (2d Dep't 1982); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 843 (2d Cir. 1967).54. Defendants' Request No. 54Punitive Damages: Mixed Commercial and Altruistic MotivesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You have heard evidence from both plaintiff and defendant regarding Warner-Lambert's conduct in connection with the development, approval and marketing of Rezulin. You have also heard evidence of Warner-Lambert's motivations for that conduct. In other words, you have heard evidence of why it is that Warner-Lambert may or may not have acted in a particular way in connection with the development, approval, and marketing of Rezulin.In determining whether to award punitive damages, you may consider whether Warner-Lambert's conduct was motivated by a desire to benefit victims of diabetes. If you find that Warner-Lambert's conduct was motivated at least in part by a desire to benefit victims of diabetes, then its conduct was not wanton and reckless, and you may not award punitive damages.Authority: Adaptedfrom Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967).55. Defendants' Request No. 55Punitive Damages—Commercial MotiveNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You have heard evidence in this case that Warner-Lambert's motivation to market Rezulin was to make a profit. Warner-Lambert had a duty to its shareholders to seek profits. Profit-seeking is a hallmark of our free enterprise system and enables pharmaceutical manufacturers to develop medications to treat serious illnesses. You cannot award punitive damages solely because you find that Warner-Lambert was motivated by the desire to obtain profits.Authority: Adaptedfrom Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 846 (2d Cir. 1967).56. Defendants' Request No. 56Punitive Damages: Adequate WarningNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.If you find that the Rezulin label did not adequately warn doctors about the degree of risk of liver injury but at least warned doctors about the possibility of liver injury, then Warner-Lambert was not wanton and reckless in its warning to doctors about that risk, and you may not award punitive damages.Furthermore, even if you find that the warning, or parts of the warning, were false or fraudulent in a technical sense, this is not enough by itself for you to find that an award of punitive damages is appropriate. If you do not find that any false or fraudulent statement was made with an almost criminal indifference and utter disregard for its effect upon the safety and rights of others, then you may not award punitive damages.Authority: Adaptedfrom Nader v. Allegheny Airlines, Inc., 626 F.2d 1031, 1035 (D.C. Cir. 1980); Sharpata v. Town of Islip, 56 N.Y.2d 332, 335, 452 N.Y.S.2d 347, 349 (1982); Maitrejean v. Levon Prop. Corp., 448 N.Y.S.2d 46, 87 A.D.2d 605 (2d Dep't 1982).57. Defendants' Request No. 57Punitive Damages: Genuine Medical Dispute As To WarningNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You have heard testimony from plaintiff's experts that the Rezulin label did not adequately warn doctors about the risk of liver injury. You have also heard testimony from defendants' experts that the Rezulin label did in fact adequately warn doctors about the risk of liver injury. If you find that there is a legitimate disagreement among the experts concerning the adequacy of the Rezulin warnings, that is, if you believe that their disagreement about the warnings is a reasonable one that simply reflects differences in their professional judgments, then you may not award punitive damages.Authority: Adaptedfrom Satcher v. Honda Motor Co., 52 F.3d 1311, 1317 (5th Cir. 1995); Berroyer v. Hertz, 672 F.2d 334, 341–342 (3d Cir. 1982); Loitz v. Remington Arms Co., 407, 563 N.E.2d 397, 407 (Ill. 1990); AM/ PAT Midwest, Inc. v. Illinois Tool Works Inc., 896 F.2d 1035, 1044 (7th Cir. 1990).58. Defendants' Request No. 58Punitive Damages: FDA ApprovalNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Evidence has been presented in this case that, for the period of time when plaintiff was prescribed Rezulin, the FDA had approved Rezulin for marketing in the United States, including the label, which contained the warnings concerning potential side effects of Rezulin. You are instructed that, under federal law, FDA approval means that the FDA concluded that:1. Warner-Lambert complied with all applicable regulations; and that2. Rezulin was safe and effective when accompanied by FDA-approved labeling.If you find that the FDA had approved Rezulin and the Rezulin labeling, then Warner-Lambert did not act wantonly or recklessly in providing warnings about the risks of Rezulin, and you may not award punitive damages.Authority: Richards v. Michelin Tire Corp., 21 F.3d 1048, 1059 (11th Cir. 1994); Nader v. Allegheny Airlines, Inc., 626 F.2d 1031, 1035 (D.C. Cir. 1980).Note: This instruction is submitted without prejudice to Warner-Lambert's contention that plaintiff's claims are pre-empted by virtue of FDA approval. Buckman Co. v. Plaintiff's' Legal Comm., 531 U.S. 341, 348 (2001); Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 886 |
| (2000)59. . | (2000)59. PJI 2:278. |
| Damages—Punitive (modified)Defendants' Request No. 59Punitive Damages: DeterrenceNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the deterrent effect of any punitive damages award, you may consider the fact that defendants no longer manufacture, market or otherwise profit from Rezulin, and that Rezulin has been replaced by newer medications which were considered to have a better. risk/benefit ratio.You may also consider whether a punitive damage award will deter Defendants from engaging in beneficial conduct, including research and development of new medications which benefit patients but which may have adverse side effects in some patients.60. Defendants' Request No. 60Punitive Damages: Reprehensibility of ConductNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.The amount of punitive damages may not be disproportionate to the wrongfulness of the defendants' conduct. You must consider the degree of blameworthiness, because some wrongful conduct is more blameworthy than others.In evaluating how blameworthy defendants' conduct was, you may consider the fact that the FDA approved, and reconfirmed its approval, of defendants' marketing of Rezulin and Rezulin's labeling. You may also consider whether there was a difference of opinion in the scientific community, including FDA regulators, regarding the safety and efficacy or the risks and benefits of Rezulin. In this regard, you may consider that Rezulin benefitted many diabetic patients and that many such patients had no side effects or complications.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996); Buckman v. Plaintiff's Legal Comm., 531 U.S. 341 (2001).61. Defendants' Request No. 61Punitive Damages: Non-partiesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the amount of punitive damages to award, if any, you may not punish defendant for any adverse impact its conduct may have had on anyone other than Mrs. Morgado.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 580 (1996); Racich v. Celotex Corp., 887 F.2d 393, 397 (2d Cir. 1989).62. Defendants' Request No. 62Punitive Damages: Non-parties in Other StatesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the amount of punitive damages, if any, you may not punish Defendants for any impact its conduct may have had on individuals in other states or its sales activities in other states.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 572 (1996).63. Defendants' Request No. 63Punitive Damages: Proportionality to Compensatory DamagesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Any award of punitive damages must bear a reasonable relationship to the amount of compensatory damages you have awarded.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 580 (1996).64. Defendants' Request No. 64Punitive Damages: Defendants' Size and WealthNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the amount of a punitive damages award, if any, you may not award a larger amount than you otherwise would merely because of Defendants' apparent size and wealth. If the Defendants' conduct does not warrant a large punitive damages award, such an award should not be made merely because you believe the Defendants have the ability to pay it.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 591 (1996); Honda Motor Co. v. Oberg, 512 U. S. 415, 439 (1994); Zazu Designs, Inc. v. L ‘Oreal, SA, 979 F.2d 499, 508–09 (7th Cir. 1992).65. Defendants' Request No. 65Punitive Damages: Corporate StatusNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You may not increase the amount of punitive damages you award based on the fact that Defendants are corporations.Authority: | Damages—Punitive (modified)Defendants' Request No. 59Punitive Damages: DeterrenceNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the deterrent effect of any punitive damages award, you may consider the fact that defendants no longer manufacture, market or otherwise profit from Rezulin, and that Rezulin has been replaced by newer medications which were considered to have a better. risk/benefit ratio.You may also consider whether a punitive damage award will deter Defendants from engaging in beneficial conduct, including research and development of new medications which benefit patients but which may have adverse side effects in some patients.60. Defendants' Request No. 60Punitive Damages: Reprehensibility of ConductNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.The amount of punitive damages may not be disproportionate to the wrongfulness of the defendants' conduct. You must consider the degree of blameworthiness, because some wrongful conduct is more blameworthy than others.In evaluating how blameworthy defendants' conduct was, you may consider the fact that the FDA approved, and reconfirmed its approval, of defendants' marketing of Rezulin and Rezulin's labeling. You may also consider whether there was a difference of opinion in the scientific community, including FDA regulators, regarding the safety and efficacy or the risks and benefits of Rezulin. In this regard, you may consider that Rezulin benefitted many diabetic patients and that many such patients had no side effects or complications.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996); Buckman v. Plaintiff's Legal Comm., 531 U.S. 341 (2001).61. Defendants' Request No. 61Punitive Damages: Non-partiesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the amount of punitive damages to award, if any, you may not punish defendant for any adverse impact its conduct may have had on anyone other than Mrs. Morgado.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 580 (1996); Racich v. Celotex Corp., 887 F.2d 393, 397 (2d Cir. 1989).62. Defendants' Request No. 62Punitive Damages: Non-parties in Other StatesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the amount of punitive damages, if any, you may not punish Defendants for any impact its conduct may have had on individuals in other states or its sales activities in other states.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 572 (1996).63. Defendants' Request No. 63Punitive Damages: Proportionality to Compensatory DamagesNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Any award of punitive damages must bear a reasonable relationship to the amount of compensatory damages you have awarded.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 580 (1996).64. Defendants' Request No. 64Punitive Damages: Defendants' Size and WealthNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining the amount of a punitive damages award, if any, you may not award a larger amount than you otherwise would merely because of Defendants' apparent size and wealth. If the Defendants' conduct does not warrant a large punitive damages award, such an award should not be made merely because you believe the Defendants have the ability to pay it.Authority: BMW of North America, Inc. v. Gore, 517 U.S. 559, 591 (1996); Honda Motor Co. v. Oberg, 512 U. S. 415, 439 (1994); Zazu Designs, Inc. v. L ‘Oreal, SA, 979 F.2d 499, 508–09 (7th Cir. 1992).65. Defendants' Request No. 65Punitive Damages: Corporate StatusNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.You may not increase the amount of punitive damages you award based on the fact that Defendants are corporations.Authority: |
| ; | Honda Motor Co. v. Oberg, 512 U.S. 415 (1994); |
| Zazu Designs, Inc. v. L'Oreal, SA, 979 F.2d 499, 508–09 (7th Cir. 1992).66. Defendants' Request No. 66Punitive Damages: Unrelated ProductsNote: The jury should not be permitted to consider Defendants' corporate net worth. If, however, the Court permits the jury to consider net worth, Defendants request the following instruction:Note: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In evaluating Defendants' net worth, you may consider the fact that Defendants manufactured and sold many products other than Rezulin, none of which are involved in this case nor are alleged to have caused Mrs. Morgado any harm.Authority: Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 442 (2001); BMW of North America, Inc. v. Gore, Inc., 517 U.S. 559, 567 (1996); Zazu Designs, Inc. v. L'Oreal, SA, 979 F.2d 499, 507 (7th Cir. 1992).67. Defendants' Request No. 67Punitive Damages: Measure of Net WorthNote: The jury should not be permitted to consider Defendants' corporate net worth. If, however, the Court permits the jury to consider net worth, Defendants request the following instruction:Note: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Net worth is measured by a company's assets minus its liabilities. Net worth is not measured by market capitalization; that is, it is not measured by the value of the company's stock.68. Defendants' Request No. 68Punitive Damages—General Business Law | Zazu Designs, Inc. v. L'Oreal, SA, 979 F.2d 499, 508–09 (7th Cir. 1992).66. Defendants' Request No. 66Punitive Damages: Unrelated ProductsNote: The jury should not be permitted to consider Defendants' corporate net worth. If, however, the Court permits the jury to consider net worth, Defendants request the following instruction:Note: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In evaluating Defendants' net worth, you may consider the fact that Defendants manufactured and sold many products other than Rezulin, none of which are involved in this case nor are alleged to have caused Mrs. Morgado any harm.Authority: Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 442 (2001); BMW of North America, Inc. v. Gore, Inc., 517 U.S. 559, 567 (1996); Zazu Designs, Inc. v. L'Oreal, SA, 979 F.2d 499, 507 (7th Cir. 1992).67. Defendants' Request No. 67Punitive Damages: Measure of Net WorthNote: The jury should not be permitted to consider Defendants' corporate net worth. If, however, the Court permits the jury to consider net worth, Defendants request the following instruction:Note: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.Net worth is measured by a company's assets minus its liabilities. Net worth is not measured by market capitalization; that is, it is not measured by the value of the company's stock.68. Defendants' Request No. 68Punitive Damages—General Business Law |
| Under | Section 349Under |
| General Business Law | General Business Law |
| , | Section 349, |
| punitive damages may only be awarded where the total award, together with that for the punitive damages, does not exceed $1,000. Thus, if you found in favor of plaintiff only on her claim under General Business Law | punitive damages may only be awarded where the total award, together with that for the punitive damages, does not exceed $1,000. Thus, if you found in favor of plaintiff only on her claim under General Business Law |
| , | Section 349, |
| you may not award punitive damages, if the total award together with that for actual damages would exceed $1,000.Authority: N.Y. Gen. Bus. Law § 349(h) (2002); Hart v. Moore, 587 N.Y.S.2d 477, 480, 155 Misc. 2d 203, 207 (Sup. Ct. Westchester Co. 1992).69. Defendants' Request No. 69Punitive Damages—Separate FindingsNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining whether to allow the plaintiff punitive damages, you must make separate findings as to compensatory and punitive damages. In reporting your verdict, if you find that the plaintiff is entitled to damages to compensate him for his injuries and if you further find that punitive damages should be awarded, you will state separately the amount, if any, awarded by you as compensatory damages, and the amount, if any, awarded by you as punitive damages.Authority: | you may not award punitive damages, if the total award together with that for actual damages would exceed $1,000.Authority: N.Y. Gen. Bus. Law § 349(h) (2002); Hart v. Moore, 587 N.Y.S.2d 477, 480, 155 Misc. 2d 203, 207 (Sup. Ct. Westchester Co. 1992).69. Defendants' Request No. 69Punitive Damages—Separate FindingsNote: The issue of punitive damages should not be submitted to the jury because, as a matter of law, punitive damages may not be assessed against defendant.In determining whether to allow the plaintiff punitive damages, you must make separate findings as to compensatory and punitive damages. In reporting your verdict, if you find that the plaintiff is entitled to damages to compensate him for his injuries and if you further find that punitive damages should be awarded, you will state separately the amount, if any, awarded by you as compensatory damages, and the amount, if any, awarded by you as punitive damages.Authority: |
| ; | PJI 2:278; |
| Baird v. City of Hornell, 185 N.Y.S.2d 933, 934, 8 A.D.2d 766 (4th Dep't 1959); Replee v. City of Corning, 176 N.Y.S.2d 162, 166, 6 A.D.2d 230, 233 (4th Dep't 1958).70. Defendants' Request No. 70SympathyI again want to remind you that your verdict must be based solely upon the evidence developed at trial or lack thereof. Under your oath as jurors you are not to be swayed by sympathy. You should be guided solely by the evidence presented during the trial, without regard to the consequences of your decision. If you let sympathy interfere with your clear thinking there is a risk that you will not arrive at a just verdict. All parties to a civil lawsuit are entitled to a fair trial. You must make a fair and impartial decision so that you will arrive at a just verdict.Authority: | Baird v. City of Hornell, 185 N.Y.S.2d 933, 934, 8 A.D.2d 766 (4th Dep't 1959); Replee v. City of Corning, 176 N.Y.S.2d 162, 166, 6 A.D.2d 230, 233 (4th Dep't 1958).70. Defendants' Request No. 70SympathyI again want to remind you that your verdict must be based solely upon the evidence developed at trial or lack thereof. Under your oath as jurors you are not to be swayed by sympathy. You should be guided solely by the evidence presented during the trial, without regard to the consequences of your decision. If you let sympathy interfere with your clear thinking there is a risk that you will not arrive at a just verdict. All parties to a civil lawsuit are entitled to a fair trial. You must make a fair and impartial decision so that you will arrive at a just verdict.Authority: |
| .71. Defendants' | PJI 1:27.71. Defendants' |
| Request No. 71Return to the CourtroomIf, during the course of your deliberations, your recollection of any part of the testimony should fail, or if you should find yourself in doubt concerning my instructions to you on the law, it is your privilege, if you so desire, to return to the courtroom for the purpose of having such testimony or instructions read to you.Authority: | Request No. 71Return to the CourtroomIf, during the course of your deliberations, your recollection of any part of the testimony should fail, or if you should find yourself in doubt concerning my instructions to you on the law, it is your privilege, if you so desire, to return to the courtroom for the purpose of having such testimony or instructions read to you.Authority: |
| .Author's | PJI 1:24.Author's |
| Comment: This well-briefed charge request represents a research resource in its own right.C. Case Documents Available on Westlaw1.Trial Motion, Memorandum and Affidavit, 2005 WL 5099010Trial Motion, Memorandum and Affidavit, 2004 WL 3552365Trial Motion, Memorandum and Affidavit, 2004 WL 5180140Trial Motion, Memorandum and Affidavit, 2003 WL 24167478Trial Motion, Memorandum and Affidavit, 2003 WL 25438563Trial Motion, Memorandum and Affidavit, 2003 WL 24167477Trial Motion, Memorandum and Affidavit, 2003 WL 24167476Trial Motion, Memorandum and Affidavit, 2003 WL 24167482Trial Motion, Memorandum and Affidavit, 2003 WL 25438564Verdict, Agreement and Settlement, 2003 WL 24167377Jury Instruction, 2003 WL 24167389Jury Instruction, 2003 WL 24167390Jury Instruction, 2003 WL 24167392Jury Instruction, 2003 WL 24167393Verdict, Agreement and Settlement, 2003 WL 25321538Verdict, Agreement and Settlement, 2003 WL 25321539Verdict, Agreement and Settlement, 2003 WL 25321540Verdict and Settlement Summary, 2003 WL 21432398Trial Motion, Memorandum and Affidavit, 2003 WL 24167481Trial Motion, Memorandum and Affidavit, 2003 WL 24167484Partial Expert Testimony, 2003 WL 24166575Trial Transcript, 2003 WL 24167461Partial Expert Testimony, 2002 WL 32899738Partial Expert Testimony, 2001 WL 34811569Partial Expert Testimony, | Comment: This well-briefed charge request represents a research resource in its own right.C. Case Documents Available on Westlaw1.Trial Motion, Memorandum and Affidavit, 2005 WL 5099010Trial Motion, Memorandum and Affidavit, 2004 WL 3552365Trial Motion, Memorandum and Affidavit, 2004 WL 5180140Trial Motion, Memorandum and Affidavit, 2003 WL 24167478Trial Motion, Memorandum and Affidavit, 2003 WL 25438563Trial Motion, Memorandum and Affidavit, 2003 WL 24167477Trial Motion, Memorandum and Affidavit, 2003 WL 24167476Trial Motion, Memorandum and Affidavit, 2003 WL 24167482Trial Motion, Memorandum and Affidavit, 2003 WL 25438564Verdict, Agreement and Settlement, 2003 WL 24167377Jury Instruction, 2003 WL 24167389Jury Instruction, 2003 WL 24167390Jury Instruction, 2003 WL 24167392Jury Instruction, 2003 WL 24167393Verdict, Agreement and Settlement, 2003 WL 25321538Verdict, Agreement and Settlement, 2003 WL 25321539Verdict, Agreement and Settlement, 2003 WL 25321540Verdict and Settlement Summary, 2003 WL 21432398Trial Motion, Memorandum and Affidavit, 2003 WL 24167481Trial Motion, Memorandum and Affidavit, 2003 WL 24167484Partial Expert Testimony, 2003 WL 24166575Trial Transcript, 2003 WL 24167461Partial Expert Testimony, 2002 WL 32899738Partial Expert Testimony, 2001 WL 34811569Partial Expert Testimony, |
| 2.Sample | 2001 WL 349057132.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: “products liability”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: “products liability”D. Research References1.Key |
| Numbers | NumbersProducts Liability 420 |
| to | to |
| 441Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 8:5 Products | 7:356§ 8:5 Products |
| liability: forklift, one plaintiff, three defendantsA. BackgroundType of Case: Products liabilityType of Injury: Near traumatic amputation of right leg; psychological injuryCase Name: Bienvenito Marte Ozoria v. Acculift Inc., TCM Inc., and Mitsui Machinery Distribution, Inc.Court: Supreme Court of New York, Queens CountyJudge: Augustus C. AgateDocket Number: No. 14485/04Verdict Date: February 9, 2007Outcome: Defense verdictBrief Summary of Facts: Plaintiff was a 41-year-old warehouseman and forklift operator. He was operating a forklift at work and parked it on a slope. After dismounting the forklift he walked over to a flatbed truck he was to unload and was struck from behind by the forklift. Police and fire emergency personnel arrived at the scene and immediately transported the plaintiff to a hospital by ambulance. Claiming injuries, the plaintiff sued for strict products liability, breach of implied warranty for a particular purpose, and negligent inspection and testing of the forklift. The plaintiff claimed he was struck because the forklift's park brake did not hold the forklift in place and alleged that a slight jolt or jarring of the forklift would disengage the brake allowing the forklift to move. Plaintiff counsel argued that the forklift's hand-operated parking brake failed in that it was capable of being placed in a “false brake” position thereby giving the operator the false impression that the brake was actually engaged. Defense counsel contended that the plaintiff caused the accident by failing to apply the park break and failing to follow accepted forklift safety procedures. The defendants—the manufacturer, distributor, and vendor of the forklift—claimed through technical and fact witnesses that the plaintiff parked the forklift on a slope and that he failed to lower the forks to the ground and tilt the forklift mast forward. Defense counsel also argued that the plaintiff failed to establish any prior brake related problems in the days and weeks following the accident. Had damages been before the jury, the plaintiff would have claimed $227,000.00 in medical expenses and $1.3 million in past and future lost earnings.B. Jury Instructions Given by the | liability: forklift, one plaintiff, three defendantsA. BackgroundType of Case: Products liabilityType of Injury: Near traumatic amputation of right leg; psychological injuryCase Name: Bienvenito Marte Ozoria v. Acculift Inc., TCM Inc., and Mitsui Machinery Distribution, Inc.Court: Supreme Court of New York, Queens CountyJudge: Augustus C. AgateDocket Number: No. 14485/04Verdict Date: February 9, 2007Outcome: Defense verdictBrief Summary of Facts: Plaintiff was a 41-year-old warehouseman and forklift operator. He was operating a forklift at work and parked it on a slope. After dismounting the forklift he walked over to a flatbed truck he was to unload and was struck from behind by the forklift. Police and fire emergency personnel arrived at the scene and immediately transported the plaintiff to a hospital by ambulance. Claiming injuries, the plaintiff sued for strict products liability, breach of implied warranty for a particular purpose, and negligent inspection and testing of the forklift. The plaintiff claimed he was struck because the forklift's park brake did not hold the forklift in place and alleged that a slight jolt or jarring of the forklift would disengage the brake allowing the forklift to move. Plaintiff counsel argued that the forklift's hand-operated parking brake failed in that it was capable of being placed in a “false brake” position thereby giving the operator the false impression that the brake was actually engaged. Defense counsel contended that the plaintiff caused the accident by failing to apply the park break and failing to follow accepted forklift safety procedures. The defendants—the manufacturer, distributor, and vendor of the forklift—claimed through technical and fact witnesses that the plaintiff parked the forklift on a slope and that he failed to lower the forks to the ground and tilt the forklift mast forward. Defense counsel also argued that the plaintiff failed to establish any prior brake related problems in the days and weeks following the accident. Had damages been before the jury, the plaintiff would have claimed $227,000.00 in medical expenses and $1.3 million in past and future lost earnings.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated3. . | Stated3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different | General Instruction—Burden of Proof—When Burden Differs on Different |
| Issues5. . | Issues5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:25A. |
| Juror's Use of Professional | Juror's Use of Professional |
| Expertise8. . | Expertise8. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict9. . | Verdict9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy10. . | Sympathy10. PJI 1:35A. |
| Split | Split |
| Trial—Liability11. Impartiality12. . | Trial—Liability11. PJI 1:36 Impartiality12. PJI 1:37. |
| Jury | Jury |
| Function13. . | Function13. PJI 1:38. |
| Court's | Court's |
| Function14. . | Function14. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings15. . | Rulings15. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence16. . | Evidence16. PJI 1:41. |
| Weighing | Weighing |
| Testimony17. . | Testimony17. PJI 1:70. |
| General Instruction—Circumstantial | General Instruction—Circumstantial |
| Evidence18. . | Evidence18. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness19. . | Witness19. PJI 1:91. |
| General Instruction—Interested | General Instruction—Interested |
| Witness—Generally20. . | Witness—Generally20. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally21. . | Defined—Generally21. PJI 2:12. |
| Common Law Standard of | Common Law Standard of |
| Care—Foreseeability—Generally22. . | Care—Foreseeability—Generally22. PJI 2:36. |
| Comparative | Comparative |
| Fault23. . | Fault23. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General24. . | General24. PJI 2:71. |
| Proximate Cause—Concurrent | Proximate Cause—Concurrent |
| Causes25. -B. | Causes25. PJI 2:125A-B. |
| Products Liability—Negligence of Maker of Assembled Product/Negligence of Repairer of Product (modified, | Products Liability—Negligence of Maker of Assembled Product/Negligence of Repairer of Product (modified, |
| ):Defendants' | Tr. at 683-684):Defendants' |
| attorney represents the manufacturer, the distributor, and the retailer of the product, the T.C.M. forklift, involved in this incident. Neither this charge nor the verdict sheet will differentiate amongst the three defendants. A manufacturer, distributor, or retailer of a product which is reasonably certain to be dangerous if negligently tested or Inspected owes a duty to use reasonable care in the inspection or testing of the product so that it will be reasonably safe for its normal uses.Reasonable care means that degree of care which a reasonably prudent manufacturer, distributor, or retailer of such a product would use in the inspecting and testing of the product.If you find that the parking brake on the T.C.H. forklift which plaintiff claims caused the incident was defective when put on the market by defendants, that such a defect on the parking brake on the T.C.M. forklift was reasonably certain to be dangerous when put to normal use, that the defendant failed to use reasonable care in inspecting and testing the parking brake on the T.C.M. forklift, or that even though defendant used reasonable care in inspecting and testing the parking brake on the T.C.M. forklift the defendants learned of the defect before putting the product on the market, you will find that the defendants were negligent.If, however, you find that the product was not defective when put on the market by defendants, or that in its defective condition the parking brake on the T.C.M. forklift was not reasonably certain to be dangerous when put to normal use, or that the defendants used reasonable care in inspecting and testing the parking brake on the T.C.M. forklift and had no knowledge of the defect when the product was put on the market, you will find that the defendants were not | attorney represents the manufacturer, the distributor, and the retailer of the product, the T.C.M. forklift, involved in this incident. Neither this charge nor the verdict sheet will differentiate amongst the three defendants. A manufacturer, distributor, or retailer of a product which is reasonably certain to be dangerous if negligently tested or Inspected owes a duty to use reasonable care in the inspection or testing of the product so that it will be reasonably safe for its normal uses.Reasonable care means that degree of care which a reasonably prudent manufacturer, distributor, or retailer of such a product would use in the inspecting and testing of the product.If you find that the parking brake on the T.C.H. forklift which plaintiff claims caused the incident was defective when put on the market by defendants, that such a defect on the parking brake on the T.C.M. forklift was reasonably certain to be dangerous when put to normal use, that the defendant failed to use reasonable care in inspecting and testing the parking brake on the T.C.M. forklift, or that even though defendant used reasonable care in inspecting and testing the parking brake on the T.C.M. forklift the defendants learned of the defect before putting the product on the market, you will find that the defendants were negligent.If, however, you find that the product was not defective when put on the market by defendants, or that in its defective condition the parking brake on the T.C.M. forklift was not reasonably certain to be dangerous when put to normal use, or that the defendants used reasonable care in inspecting and testing the parking brake on the T.C.M. forklift and had no knowledge of the defect when the product was put on the market, you will find that the defendants were not |
| negligent.26. . | negligent.26. PJI 2:120. |
| Strict Products Liability (customized, Tr. at 684–687):A manufacturer, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product when the product is used for its intended or reasonably foreseeable purpose. A product is defective if it is not reasonably safe, that is, if the product is so likely to be harmful to persons that a reasonable person who had actual knowledge of its potential for causing injury would conclude that it should not be marketed in that condition. It is not necessary to find that the manufacturer, distributor, or retailer knew or should have known of the product's potential for causing injury in order to determine that it was not reasonably safe. It is sufficient that a reasonable person who in fact knows of the product's potential for causing injury would have concluded that the product should not have been marketed in that condition. The burden of proving that the product was defective and that the defect was a substantial factor in causing the accident is on the plaintiff.The first question you must answer is whether the parking brake on the T.C.M. forklift was defective. The plaintiff claims that the T.C.M. forklift was defective because the parking brake on the forklift failed. Defendant denied that the parking brake on the forklift was defective and claims plaintiff failed to use the parking brake on the forklift properly. If you find that the parking brake on the T.C.M. forklift was reasonably safe for its intended or unintended but reasonably foreseeable purpose, you will find that it was not defective. If you find that the parking brake on the T.C.M. forklift was defective, you will proceed to consider whether the defect was a substantial factor in causing the incident, that is whether a reasonably—whether a reasonable person would regard it as a cause of the incident.If you find that the defect was not a substantial factor in causing the incident, you need proceed no further in your deliberations on this issue. If you find that the defect in the parking brake on the T.C.M. forklift was a substantial factor in causing the incident, then you will proceed to consider whether plaintiff contributed to the incident.The burden of proving that plaintiff contributed to the incident is on the defense, on the defendants. In this regard you will consider the following questions: One, whether at the time of the occurrence the parking brake on the T.C.M. forklift was being misused; two, whether plaintiff in the use of reasonable care could have both discovered the defect and realized its danger; three, whether plaintiff by the use of reasonable care could have otherwise avoided the incident.If you find that the parking brake on the T.C.M. forklift was misused, or that the plaintiff in the use of reasonable care could have discovered the defect and realized its danger, or that the plaintiff in the use of reasonable care could otherwise have avoided the incident, then you must apportion the responsibility of plaintiff and defendants for causing the incident.Weighing all the facts and circumstances you must consider the total responsibility, that is the responsibility of both plaintiff and defendants, which contributed to causing this incident and determine what percentage is chargeable to each. In your verdict you will state the percentages you find. The total of these percentages must equal a hundred | Strict Products Liability (customized, Tr. at 684–687):A manufacturer, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product when the product is used for its intended or reasonably foreseeable purpose. A product is defective if it is not reasonably safe, that is, if the product is so likely to be harmful to persons that a reasonable person who had actual knowledge of its potential for causing injury would conclude that it should not be marketed in that condition. It is not necessary to find that the manufacturer, distributor, or retailer knew or should have known of the product's potential for causing injury in order to determine that it was not reasonably safe. It is sufficient that a reasonable person who in fact knows of the product's potential for causing injury would have concluded that the product should not have been marketed in that condition. The burden of proving that the product was defective and that the defect was a substantial factor in causing the accident is on the plaintiff.The first question you must answer is whether the parking brake on the T.C.M. forklift was defective. The plaintiff claims that the T.C.M. forklift was defective because the parking brake on the forklift failed. Defendant denied that the parking brake on the forklift was defective and claims plaintiff failed to use the parking brake on the forklift properly. If you find that the parking brake on the T.C.M. forklift was reasonably safe for its intended or unintended but reasonably foreseeable purpose, you will find that it was not defective. If you find that the parking brake on the T.C.M. forklift was defective, you will proceed to consider whether the defect was a substantial factor in causing the incident, that is whether a reasonably—whether a reasonable person would regard it as a cause of the incident.If you find that the defect was not a substantial factor in causing the incident, you need proceed no further in your deliberations on this issue. If you find that the defect in the parking brake on the T.C.M. forklift was a substantial factor in causing the incident, then you will proceed to consider whether plaintiff contributed to the incident.The burden of proving that plaintiff contributed to the incident is on the defense, on the defendants. In this regard you will consider the following questions: One, whether at the time of the occurrence the parking brake on the T.C.M. forklift was being misused; two, whether plaintiff in the use of reasonable care could have both discovered the defect and realized its danger; three, whether plaintiff by the use of reasonable care could have otherwise avoided the incident.If you find that the parking brake on the T.C.M. forklift was misused, or that the plaintiff in the use of reasonable care could have discovered the defect and realized its danger, or that the plaintiff in the use of reasonable care could otherwise have avoided the incident, then you must apportion the responsibility of plaintiff and defendants for causing the incident.Weighing all the facts and circumstances you must consider the total responsibility, that is the responsibility of both plaintiff and defendants, which contributed to causing this incident and determine what percentage is chargeable to each. In your verdict you will state the percentages you find. The total of these percentages must equal a hundred |
| percent.27. . | percent.27. PJI 2:142. |
| Liability for Breach of Implied Warranty (modified, | Liability for Breach of Implied Warranty (modified, |
| ):The | Tr. at 687–688):The |
| law implies warranty—The law implies a warranty by a manufacturer, distributor, or retailer that places the product on the market that it is reasonably fit for the ordinary purposes for which such product is used. If the product is not reasonably fit to be used for its ordinary purposes, the warranty is breached.Plaintiff claims that the T.C.M. forklift was not fit for its ordinary purposes because the parking brake on the T.C.M. forklift was defective. If you find that the parking brake on the T.C.M. forklift was fit for Its ordinary purpose, you will find there was no breach of implied warranty and you will find for the defendants on this issue. If you find that the parking brake on the T.C.M. forklift was not fit for its ordinary purposes, you will find that the defendants breached their implied | law implies warranty—The law implies a warranty by a manufacturer, distributor, or retailer that places the product on the market that it is reasonably fit for the ordinary purposes for which such product is used. If the product is not reasonably fit to be used for its ordinary purposes, the warranty is breached.Plaintiff claims that the T.C.M. forklift was not fit for its ordinary purposes because the parking brake on the T.C.M. forklift was defective. If you find that the parking brake on the T.C.M. forklift was fit for Its ordinary purpose, you will find there was no breach of implied warranty and you will find for the defendants on this issue. If you find that the parking brake on the T.C.M. forklift was not fit for its ordinary purposes, you will find that the defendants breached their implied |
| warranty.28. . | warranty.28. PJI 1:97. |
| General Instruction—Special | General Instruction—Special |
| Verdicts29. . Conclusion30. . | Verdicts29. PJI 1:28. Conclusion30. PJI 1:104. |
| General Instruction—Supplemental Charge—Questions by Jurors (modified, | General Instruction—Supplemental Charge—Questions by Jurors (modified, |
| ):[T]here | Tr. at 691–692):[T]here |
| can be no communication from the jury from this point unless it's in writing and paper is going to be provided to you by the court officer and those will be marked court exhibits, any questions that you may have of the Court. There can be no oral communication from the jury with the judge or anybody once the deliberations start.C. Case Documents Available on Westlaw1. Jury Instruction, | can be no communication from the jury from this point unless it's in writing and paper is going to be provided to you by the court officer and those will be marked court exhibits, any questions that you may have of the Court. There can be no oral communication from the jury with the judge or anybody once the deliberations start.C. Case Documents Available on Westlaw1. Jury Instruction, |
| Verdict | 2007 WL 6097910Verdict |
| and Settlement Summary, | and Settlement Summary, |
| Verdict, | 2007 WL 788415Verdict, |
| Agreement and Settlement (Verdict Sheet), 2007 WL 6082335Trial Pleading (Amended Answer), | Agreement and Settlement (Verdict Sheet), 2007 WL 6082335Trial Pleading (Amended Answer), |
| Trial | 2005 WL 6250372Trial |
| Pleading (Amended Verified Complaint), 2005 WL 62503712. Sample Westlaw Query for Trial Court Documents in Similar Cases: forklift and (strict or product /2 liability) or (“implied warranty”)D. Research References1.Key | Pleading (Amended Verified Complaint), 2005 WL 62503712. Sample Westlaw Query for Trial Court Documents in Similar Cases: forklift and (strict or product /2 liability) or (“implied warranty”)D. Research References1.Key |
| Numbers , | NumbersProducts Liability 236, 420 |
| to | to |
| 441Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Vehicle and Traffic LawDefective Forklift Truck, 8 Am. Jur. Proof of Facts 3d 615New York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:214§ 8:6 Products liability: Gasoline chemical; water well contamination [proposed federal instructions]A. BackgroundType of Case: Products liabilityType of Injury: Water well contaminationCase Name: The City of New York, the Water Board and Water Finance Agency v. Amerada Hess Corp. et al.Court: U.S. District Court, S.D.N.Y.Judge: Hon. Shira A. ScheindlinDocket Number: 04-CV-3417Verdict Date: Oct. 19, 2009Outcome: Verdict for plaintiff, $104,690,000Brief Summary of Facts: In the mid-1990s, the City of New York acquired a groundwater system in Queens that consisted of 68 wells. Between 1998 and 2006, it found the gasoline additive methyl tertiary butyl ether (“MTBE”) present in more than half of the wells. In 2004, New York State banned the use of MTBE, finding that the chemical was highly water soluble, was a possible carcinogen and had contaminated groundwater throughout the state.The City of New York sued ExxonMobil Corp. and several other oil companies, alleging that gasoline containing MTBE was a defectively designed product, that the defendants failed to warn of the dangerous nature of their product, and that the defendants' actions constituted trespass, negligence and a nuisance. It claimed that the contamination would prevent the city from using the wells as part of a backup system in case of emergencies or droughts, and required expensive treatment to remove the MTBE.This action became part of a consolidated, multi-district litigation involving groundwater contamination from MTBE. MTBE is a chemical compound produced from methanol and isobutylene, a byproduct of the gasoline refining process, that is highly soluble in water and does not readily biodegrade. Plaintiffs claimed that because of its high solubility, MTBE races through the underground water supply, eventually contaminating wells and underground aquifers. MTBE can persist in underground aquifers for many decades. Even in very small quantities, MTBE imparts a foul taste and odor to water and renders it unusable and unfit for human consumption. Plaintiffs also contended that MTBE is carcinogenic in animals and may be carcinogenic in humans, as well.Defendants began adding the oxygenate MTBE to gasoline sometime after 1979 in order to boost octane levels in higher grades of gasoline. Defendants claimed that MTBE helped fuel burn more efficiently to reduce air pollution. Although the Clean Air Act of 1990 required defendants to use oxygenates, the plaintiffs contended that there were many possible alternatives. Plaintiffs claimed that the defendants chose MTBE so as to profit from a gasoline refining waste byproduct. Plaintiffs also claimed that the defendants were aware that mixing MTBE with gasoline would result in massive groundwater contamination, that they knew that there was a national crisis involving gasoline leaking from multiple sources, such as underground storage tanks, and that gasoline enters the soil from gas stations due to consumer and jobber overfills.B. Plaintiff's Proposed Jury InstructionsThe following jury instructions were proposed by the plaintiff City of New York:1. General Introduction. Now that you have heard the evidence and the argument, it is my duty to instruct you about the applicable law. It is your duty to follow the law as I will state it and to apply it to the facts as you find them from the evidence in the case. Do not single out one instruction as stating the law, but consider the instructions as a whole. You are not to be concerned about the wisdom of any rule of law stated by me. You must follow and apply the law.The lawyers have properly referred to some of the governing rules of law in their arguments. If there is any difference between the law stated by the lawyers and as stated in these instructions, you are governed by my instructions.Nothing I say in these instructions indicates that I have any opinion about the facts. You, not I, have the duty to determine the facts.You must perform your duties as jurors without bias or prejudice as to any party.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.01 (5th Ed., 2000 & rev. 2009).Author's Note: These federal instructions are more summary than the comparable introductory instructions in NY PJI. See, for example, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Vehicle and Traffic LawDefective Forklift Truck, 8 Am. Jur. Proof of Facts 3d 615New York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:214§ 8:6 Products liability: Gasoline chemical; water well contamination [proposed federal instructions]A. BackgroundType of Case: Products liabilityType of Injury: Water well contaminationCase Name: The City of New York, the Water Board and Water Finance Agency v. Amerada Hess Corp. et al.Court: U.S. District Court, S.D.N.Y.Judge: Hon. Shira A. ScheindlinDocket Number: 04-CV-3417Verdict Date: Oct. 19, 2009Outcome: Verdict for plaintiff, $104,690,000Brief Summary of Facts: In the mid-1990s, the City of New York acquired a groundwater system in Queens that consisted of 68 wells. Between 1998 and 2006, it found the gasoline additive methyl tertiary butyl ether (“MTBE”) present in more than half of the wells. In 2004, New York State banned the use of MTBE, finding that the chemical was highly water soluble, was a possible carcinogen and had contaminated groundwater throughout the state.The City of New York sued ExxonMobil Corp. and several other oil companies, alleging that gasoline containing MTBE was a defectively designed product, that the defendants failed to warn of the dangerous nature of their product, and that the defendants' actions constituted trespass, negligence and a nuisance. It claimed that the contamination would prevent the city from using the wells as part of a backup system in case of emergencies or droughts, and required expensive treatment to remove the MTBE.This action became part of a consolidated, multi-district litigation involving groundwater contamination from MTBE. MTBE is a chemical compound produced from methanol and isobutylene, a byproduct of the gasoline refining process, that is highly soluble in water and does not readily biodegrade. Plaintiffs claimed that because of its high solubility, MTBE races through the underground water supply, eventually contaminating wells and underground aquifers. MTBE can persist in underground aquifers for many decades. Even in very small quantities, MTBE imparts a foul taste and odor to water and renders it unusable and unfit for human consumption. Plaintiffs also contended that MTBE is carcinogenic in animals and may be carcinogenic in humans, as well.Defendants began adding the oxygenate MTBE to gasoline sometime after 1979 in order to boost octane levels in higher grades of gasoline. Defendants claimed that MTBE helped fuel burn more efficiently to reduce air pollution. Although the Clean Air Act of 1990 required defendants to use oxygenates, the plaintiffs contended that there were many possible alternatives. Plaintiffs claimed that the defendants chose MTBE so as to profit from a gasoline refining waste byproduct. Plaintiffs also claimed that the defendants were aware that mixing MTBE with gasoline would result in massive groundwater contamination, that they knew that there was a national crisis involving gasoline leaking from multiple sources, such as underground storage tanks, and that gasoline enters the soil from gas stations due to consumer and jobber overfills.B. Plaintiff's Proposed Jury InstructionsThe following jury instructions were proposed by the plaintiff City of New York:1. General Introduction. Now that you have heard the evidence and the argument, it is my duty to instruct you about the applicable law. It is your duty to follow the law as I will state it and to apply it to the facts as you find them from the evidence in the case. Do not single out one instruction as stating the law, but consider the instructions as a whole. You are not to be concerned about the wisdom of any rule of law stated by me. You must follow and apply the law.The lawyers have properly referred to some of the governing rules of law in their arguments. If there is any difference between the law stated by the lawyers and as stated in these instructions, you are governed by my instructions.Nothing I say in these instructions indicates that I have any opinion about the facts. You, not I, have the duty to determine the facts.You must perform your duties as jurors without bias or prejudice as to any party.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.01 (5th Ed., 2000 & rev. 2009).Author's Note: These federal instructions are more summary than the comparable introductory instructions in NY PJI. See, for example, |
| , | PJI 1:37, |
| Jury Function, and | Jury Function, and |
| , | PJI 1:38, |
| Court's Function.2. Use of notes. You may use the notes taken by you during the trial. However, the notes should not be substituted for your memory. Remember, notes are not evidence. If your memory should differ from your notes, then you should rely on your memory and not on your notes.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.02 (5th Ed., 2000 & rev. 2009).Author's Note: Under New York law, whether to allow jurors to take notes during the trial rests in the discretion of the trial judge. 1A | Court's Function.2. Use of notes. You may use the notes taken by you during the trial. However, the notes should not be substituted for your memory. Remember, notes are not evidence. If your memory should differ from your notes, then you should rely on your memory and not on your notes.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.02 (5th Ed., 2000 & rev. 2009).Author's Note: Under New York law, whether to allow jurors to take notes during the trial rests in the discretion of the trial judge. 1A |
| , | NY PJI3d 1:103, |
| at 225 (2018). The New York pattern charge, | at 225 (2018). The New York pattern charge, |
| , | PJI 1:103, |
| General Instruction — Supplemental Charge — Note-taking by Jurors (which is designated in PJI to be given prior to trial), is longer and more-detailed than this proposed federal charge, and advises that jurors who did not take notes should not be unduly influenced by the notes of those who did.3. All persons equal before the law-Organizations. A corporation, city or city agency is entitled to the same fair trial as a private individual. All persons, including corporations, cities, city agencies and other organizations stand equal before the law, and are to be treated as equals.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.12 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: There is no comparable New York pattern charge that corporations are people too.4. Evidence in the case. Unless you are otherwise instructed, the evidence in the case consists of the sworn testimony of the witnesses regardless of who called the witness, all exhibits received in evidence regardless of who may have produced them, and all facts and events that may have been admitted or stipulated to and all facts and events that may have been judicially noticed.Statements and arguments by the lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statement, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. However, when the lawyers on both sides stipulate or agree on the existence of a fact, you must, unless otherwise instructed, accept the stipulation and regard that fact as proved.I may take judicial notice of certain facts or events. When I declare that I will take judicial notice of some fact or event, you must, unless otherwise instructed, accept my declaration as evidence and regard as proved the fact or event that has been judicially noticed.Any evidence to which I have sustained an objection and evidence that I have ordered stricken must be entirely disregarded.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.30 (5th Ed., 2000 & rev. 2009).Author's Note: The analogous New York charges, where no pre-trial instruction has been given, are | General Instruction — Supplemental Charge — Note-taking by Jurors (which is designated in PJI to be given prior to trial), is longer and more-detailed than this proposed federal charge, and advises that jurors who did not take notes should not be unduly influenced by the notes of those who did.3. All persons equal before the law-Organizations. A corporation, city or city agency is entitled to the same fair trial as a private individual. All persons, including corporations, cities, city agencies and other organizations stand equal before the law, and are to be treated as equals.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.12 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: There is no comparable New York pattern charge that corporations are people too.4. Evidence in the case. Unless you are otherwise instructed, the evidence in the case consists of the sworn testimony of the witnesses regardless of who called the witness, all exhibits received in evidence regardless of who may have produced them, and all facts and events that may have been admitted or stipulated to and all facts and events that may have been judicially noticed.Statements and arguments by the lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statement, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. However, when the lawyers on both sides stipulate or agree on the existence of a fact, you must, unless otherwise instructed, accept the stipulation and regard that fact as proved.I may take judicial notice of certain facts or events. When I declare that I will take judicial notice of some fact or event, you must, unless otherwise instructed, accept my declaration as evidence and regard as proved the fact or event that has been judicially noticed.Any evidence to which I have sustained an objection and evidence that I have ordered stricken must be entirely disregarded.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 103.30 (5th Ed., 2000 & rev. 2009).Author's Note: The analogous New York charges, where no pre-trial instruction has been given, are |
| , | PJI 1:40, |
| Consider Only Competent Evidence, and | Consider Only Competent Evidence, and |
| , | PJI 1:39, |
| No Inference From Rulings. Moreover, | No Inference From Rulings. Moreover, |
| , | PJI 1:25, |
| Consider Only Testimony and Exhibits, listed among charges appropriate where a pre-trial charge has been given, states the attorney arguments are not evidence. There is no New York pattern charge on judicial notice generally.5. Burden of Proof—Preponderance of the Evidence. Plaintiff the City has the burden in a civil action, such as this, to prove its claims regarding Station 6 by a preponderance of the evidence.To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence as, when considered and compared with the evidence opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true.The preponderance of the evidence is not alone determined by the number of witnesses, nor the amount of testimony or documentary evidence, but rather the convincing character of the testimony and other evidence, and the inferences reasonably to be drawn therefrom, weighed by the impartial minds of the jury.In determining whether any fact in issue has been proved by a preponderance of the evidence you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 104.01 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: The analogous New York charge is | Consider Only Testimony and Exhibits, listed among charges appropriate where a pre-trial charge has been given, states the attorney arguments are not evidence. There is no New York pattern charge on judicial notice generally.5. Burden of Proof—Preponderance of the Evidence. Plaintiff the City has the burden in a civil action, such as this, to prove its claims regarding Station 6 by a preponderance of the evidence.To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence as, when considered and compared with the evidence opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true.The preponderance of the evidence is not alone determined by the number of witnesses, nor the amount of testimony or documentary evidence, but rather the convincing character of the testimony and other evidence, and the inferences reasonably to be drawn therefrom, weighed by the impartial minds of the jury.In determining whether any fact in issue has been proved by a preponderance of the evidence you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 104.01 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: The analogous New York charge is |
| , | PJI 1:23, |
| Burden of proof, which articulates a specific standard, i.e., that “burden of proof” means “that it must be established by a fair preponderance of the credible evidence. . ..”6. Credibility of Witnesses. You are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testifies, or by the character of the testimony given, or by evidence contrary to the testimony.You should carefully examine all the testimony given, the circumstances under which each witness has testified, and every matter in evidence tending to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor or manner while testifying.Consider the witness' ability to observe the matters as to which the witness has testified, and whether the witness impresses you as having an accurate recollection of these matters. Also, consider any relation each witness may have with either side of the case, the manner in which each witness might be affected by the decision in this case, and the extent to which the testimony of each witness is either supported or contradicted by other evidence in the case.Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses may or may not cause you to discredit such testimony. Two or more persons seeing an event may see or hear it differently.In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.After making your own judgment, you will give the testimony of each witness such weight, if any, that you may think it deserves. In short, you may accept or reject the testimony of any witness, in whole or in part.In addition, the weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 105.01 (5th Ed., 2000 & rev. 2009).Author's Note: The analogous New York pattern charge is PJI 1:41, Weighing testimony.7. Impeachment—Inconsistent statements or conduct. A witness may be discredited or impeached by contradictory evidence or by evidence that at some other time the witness has said or done something, or has failed to say or do something that is inconsistent with the witness' present testimony.If you believe any witness has been impeached and thus discredited, you may give the testimony of that witness such credibility, if any, you think it deserves.If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust such witness' other testimony and you may reject all the testimony of that witness or give it such credibility as you may think it deserves.An act or omission is “knowingly” done, if voluntarily and intentionally, and not because of mistake or accident or other innocent reason.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 105.04 (5th Ed., 2000 & rev. 2009).Author's Note: The analogous New York instructions are included in | Burden of proof, which articulates a specific standard, i.e., that “burden of proof” means “that it must be established by a fair preponderance of the credible evidence. . ..”6. Credibility of Witnesses. You are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testifies, or by the character of the testimony given, or by evidence contrary to the testimony.You should carefully examine all the testimony given, the circumstances under which each witness has testified, and every matter in evidence tending to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor or manner while testifying.Consider the witness' ability to observe the matters as to which the witness has testified, and whether the witness impresses you as having an accurate recollection of these matters. Also, consider any relation each witness may have with either side of the case, the manner in which each witness might be affected by the decision in this case, and the extent to which the testimony of each witness is either supported or contradicted by other evidence in the case.Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses may or may not cause you to discredit such testimony. Two or more persons seeing an event may see or hear it differently.In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.After making your own judgment, you will give the testimony of each witness such weight, if any, that you may think it deserves. In short, you may accept or reject the testimony of any witness, in whole or in part.In addition, the weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 105.01 (5th Ed., 2000 & rev. 2009).Author's Note: The analogous New York pattern charge is PJI 1:41, Weighing testimony.7. Impeachment—Inconsistent statements or conduct. A witness may be discredited or impeached by contradictory evidence or by evidence that at some other time the witness has said or done something, or has failed to say or do something that is inconsistent with the witness' present testimony.If you believe any witness has been impeached and thus discredited, you may give the testimony of that witness such credibility, if any, you think it deserves.If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust such witness' other testimony and you may reject all the testimony of that witness or give it such credibility as you may think it deserves.An act or omission is “knowingly” done, if voluntarily and intentionally, and not because of mistake or accident or other innocent reason.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 105.04 (5th Ed., 2000 & rev. 2009).Author's Note: The analogous New York instructions are included in |
| , | PJI 1:41, |
| Weighing testimony, and | Weighing testimony, and |
| , | PJI 1:22, |
| Falsus in Uno.8. Duty to deliberate. Your answer to the question I pose to you must represent the considered judgment of each of you. In order to return an answer, it is necessary that each juror agree. Your answer must be unanimous.It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without disregard of individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. **But do not surrender your honest conviction as to the weight or effect of evidence, solely because of the opinion of your fellow jurors, or for the mere purpose of returning an answer.Remember at all times that you are not partisans. You are judges-judges of the facts. Your sole interest is to seek the truth from the evidence in the case.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 106.01 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: For the analogous New York instruction, see | Falsus in Uno.8. Duty to deliberate. Your answer to the question I pose to you must represent the considered judgment of each of you. In order to return an answer, it is necessary that each juror agree. Your answer must be unanimous.It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without disregard of individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. **But do not surrender your honest conviction as to the weight or effect of evidence, solely because of the opinion of your fellow jurors, or for the mere purpose of returning an answer.Remember at all times that you are not partisans. You are judges-judges of the facts. Your sole interest is to seek the truth from the evidence in the case.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 106.01 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: For the analogous New York instruction, see |
| , | PJI 1:28, |
| Conclusion.9. Use of depositions as evidence. During the trial, certain testimony has been presented by way of deposition. The deposition consisted of sworn, recorded answers to questions asked of the witness in advance of the trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason is not present to testify from the witness stand may be presented in writing under oath or on a video recording. Such testimony is entitled to the same consideration and is to be judged as to credibility, and weighed, and otherwise considered by you, insofar as possible, in the same way as if the witness had been present and had testified from the witness stand.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 105.02 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: Use of depositions is addressed in | Conclusion.9. Use of depositions as evidence. During the trial, certain testimony has been presented by way of deposition. The deposition consisted of sworn, recorded answers to questions asked of the witness in advance of the trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason is not present to testify from the witness stand may be presented in writing under oath or on a video recording. Such testimony is entitled to the same consideration and is to be judged as to credibility, and weighed, and otherwise considered by you, insofar as possible, in the same way as if the witness had been present and had testified from the witness stand.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 105.02 (5th Ed., 2000 & rev. 2009) (as modified).Author's Note: Use of depositions is addressed in |
| , | PJI 1:94, |
| General Instruction — Use of Pre-Trial Deposition Upon Trial, which is written for use immediately prior to introduction of the deposition testimony. Consistent with the above, | General Instruction — Use of Pre-Trial Deposition Upon Trial, which is written for use immediately prior to introduction of the deposition testimony. Consistent with the above, |
| PJI 1:94 |
| provides that “[t]he portions of the transcript of the examination before trial that you will hear are to be considered as if (plaintiff, defendant, witness AB) were testifying from the witness stand.”10. Election of foreperson & jury interrogatory. Upon retiring to the jury room, you will select one of your number to act as your foreperson. The foreperson will preside over your deliberations, and will be your spokesperson here in Court.Forms for your answer have been prepared for your convenience. The first question you must answer is: “Has the City proved by a fair preponderance of the credible evidence that it intends, in good faith, to begin construction of the Station 6 facility within the next fifteen (15) years? In making this determination you should not consider whether the City will have the funding to do so.”You will note that this question calls for a “Yes” or “No” answer. The answer to this question must be the unanimous answer of the jury. You will take these forms to the jury room and, when you have reached unanimous agreement as to your answer, you will have your foreperson fill in, date and sign the form that sets forth the decision upon which you unanimously agree; and then return with your answer to the courtroom.If the answer to the first question is “Yes,” you must also answer a second question. The second question is: “Has the City proved by a fair preponderance of the credible evidence that it intends, in good faith, to use the water from the Station 6 wells, within the next fifteen (15) to twenty (20) years, either to supply drinking water to its residents or to serve as a back-up source of drinking water if needed due to shortages in other sources of supply? In making this determination you should not consider whether the City will have the funding to do so.”This question also calls for a “Yes” or “No” answer. The answer to this question must be the unanimous answer of the jury. You will take these forms to the jury room and, when you have reached unanimous agreement as to your answer, you will have your foreperson fill in, date and sign the form that sets forth the decision upon which you unanimously agree; and then return with your answer to the courtroom.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 106.04 (5th Ed., 2000 & rev. 2009) (as modified).11. Communications between court and jury during jury's deliberations. If it becomes necessary during your deliberations to communicate with me, you may send a note by a bailiff, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with me by any means other than a signed writing, and I will never communicate with any member of the jury on any subject touching the merits of the case otherwise than in writing, or orally here in open court.You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are for-bidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case.Bear in mind also that you are never to reveal to any person-not even to me-how the jury stands, numerically or otherwise, on the questions before you, until after you have reached a unanimous answer.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 106.08 (5th Ed., 2000 & rev. 2009).Author's Note: Inquiry by the Jury is addressed in commentary at 1A NY PJI1:1 3d, at 10 to 12 (2018), but is not the subject of a specific pattern charge.12. Irrelevance of funding availability. In answering one or both questions presented on the jury questionnaire, you should not attempt to determine whether or not the City will have funding available, from public sources, to begin the construction of Station 6 within the next fifteen years. The City does not need to prove that it will have such funding available in order for you to answer either or both questions with a “yes.”You are instructed to consider evidence relating to the City's budgetary decisions solely for the purpose of establishing whether or not the City, in good faith, intends to build Station 6 for reasons unrelated to the availability of funding. The existence or potential availability of funding, as indicated or discussed in the context of the City's budgetary decisionmaking processes, is of no concern during this phase of the trial.Authority: 7/29/09 Pre-Trial Conference13. Presence of other contaminants. The City contends that it was injured as a result of MTBE regardless of the presence of other contaminants besides MTBE in the water. The presence of other contaminants is not a defense to the City's claim that it was injured as a result of MTBE. During this phase of the trial, and in answering the questions presented to you, you may consider the presence of other contaminants only with respect to the question of whether the City intends, in good faith, to design and begin construction of a treatment facility at Station 6 within the next fifteen years.Authority: 7/29/09 Pre-Trial Conference; Cornell v. Exxon, 558 N.Y.S.2d. 647 (3d Dept. 1990).Author's Note: Proposed Instructions 12 and 13 above are specific to the facts of the case. For a discussion of drafting appropriate non-pattern charges suiting the facts of a case, see generally § 3:2, above.C. Case Documents Available on Westlaw1. Proposed Jury instructions, | provides that “[t]he portions of the transcript of the examination before trial that you will hear are to be considered as if (plaintiff, defendant, witness AB) were testifying from the witness stand.”10. Election of foreperson & jury interrogatory. Upon retiring to the jury room, you will select one of your number to act as your foreperson. The foreperson will preside over your deliberations, and will be your spokesperson here in Court.Forms for your answer have been prepared for your convenience. The first question you must answer is: “Has the City proved by a fair preponderance of the credible evidence that it intends, in good faith, to begin construction of the Station 6 facility within the next fifteen (15) years? In making this determination you should not consider whether the City will have the funding to do so.”You will note that this question calls for a “Yes” or “No” answer. The answer to this question must be the unanimous answer of the jury. You will take these forms to the jury room and, when you have reached unanimous agreement as to your answer, you will have your foreperson fill in, date and sign the form that sets forth the decision upon which you unanimously agree; and then return with your answer to the courtroom.If the answer to the first question is “Yes,” you must also answer a second question. The second question is: “Has the City proved by a fair preponderance of the credible evidence that it intends, in good faith, to use the water from the Station 6 wells, within the next fifteen (15) to twenty (20) years, either to supply drinking water to its residents or to serve as a back-up source of drinking water if needed due to shortages in other sources of supply? In making this determination you should not consider whether the City will have the funding to do so.”This question also calls for a “Yes” or “No” answer. The answer to this question must be the unanimous answer of the jury. You will take these forms to the jury room and, when you have reached unanimous agreement as to your answer, you will have your foreperson fill in, date and sign the form that sets forth the decision upon which you unanimously agree; and then return with your answer to the courtroom.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 106.04 (5th Ed., 2000 & rev. 2009) (as modified).11. Communications between court and jury during jury's deliberations. If it becomes necessary during your deliberations to communicate with me, you may send a note by a bailiff, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with me by any means other than a signed writing, and I will never communicate with any member of the jury on any subject touching the merits of the case otherwise than in writing, or orally here in open court.You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are for-bidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case.Bear in mind also that you are never to reveal to any person-not even to me-how the jury stands, numerically or otherwise, on the questions before you, until after you have reached a unanimous answer.Authority: 3 Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instructions, § 106.08 (5th Ed., 2000 & rev. 2009).Author's Note: Inquiry by the Jury is addressed in commentary at 1A NY PJI1:1 3d, at 10 to 12 (2018), but is not the subject of a specific pattern charge.12. Irrelevance of funding availability. In answering one or both questions presented on the jury questionnaire, you should not attempt to determine whether or not the City will have funding available, from public sources, to begin the construction of Station 6 within the next fifteen years. The City does not need to prove that it will have such funding available in order for you to answer either or both questions with a “yes.”You are instructed to consider evidence relating to the City's budgetary decisions solely for the purpose of establishing whether or not the City, in good faith, intends to build Station 6 for reasons unrelated to the availability of funding. The existence or potential availability of funding, as indicated or discussed in the context of the City's budgetary decisionmaking processes, is of no concern during this phase of the trial.Authority: 7/29/09 Pre-Trial Conference13. Presence of other contaminants. The City contends that it was injured as a result of MTBE regardless of the presence of other contaminants besides MTBE in the water. The presence of other contaminants is not a defense to the City's claim that it was injured as a result of MTBE. During this phase of the trial, and in answering the questions presented to you, you may consider the presence of other contaminants only with respect to the question of whether the City intends, in good faith, to design and begin construction of a treatment facility at Station 6 within the next fifteen years.Authority: 7/29/09 Pre-Trial Conference; Cornell v. Exxon, 558 N.Y.S.2d. 647 (3d Dept. 1990).Author's Note: Proposed Instructions 12 and 13 above are specific to the facts of the case. For a discussion of drafting appropriate non-pattern charges suiting the facts of a case, see generally § 3:2, above.C. Case Documents Available on Westlaw1. Proposed Jury instructions, |
| Verdict | 2009 WL 3755340 (S.D.N.Y.)Verdict |
| Summary, | Summary, |
| For | 2009 WL 5512722 (S.D.N.Y.)For |
| Opinion See 2009 WL 3347214, 643 F.Supp.2d 471, 643 F.Supp.2d 482, 643 F.Supp.2d 461, 643 F.Supp.2d 439, 643 F.Supp.2d 446, 2009 WL 1840882, 644 F.Supp.2d 310, Prod.Liab.Rep. (CCH) P 17791, 476 F.Supp.2d 275, 458 F.Supp.2d 149, 2006 WL 1997471, 399 F.Supp.2d 325, 399 F.Supp.2d 320, 2005 WL 1500893, 379 F.Supp.2d 3482. Sample Westlaw Query for Trial Court Documents in Similar Cases: “methyl tertiary butyl ether” or MTBED. Research References1.Key | Opinion See 2009 WL 3347214, 643 F.Supp.2d 471, 643 F.Supp.2d 482, 643 F.Supp.2d 461, 643 F.Supp.2d 439, 643 F.Supp.2d 446, 2009 WL 1840882, 644 F.Supp.2d 310, Prod.Liab.Rep. (CCH) P 17791, 476 F.Supp.2d 275, 458 F.Supp.2d 149, 2006 WL 1997471, 399 F.Supp.2d 325, 399 F.Supp.2d 320, 2005 WL 1500893, 379 F.Supp.2d 3482. Sample Westlaw Query for Trial Court Documents in Similar Cases: “methyl tertiary butyl ether” or MTBED. Research References1.Key |
| Numbers , , , | NumbersProducts Liability 133, 137, 138, 420 |
| to | to |
| 431Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:213, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Products Liability 2d4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 4:213, |
| Appendix 8A Outline | 4:214Appendix 8A Outline |
| of PJI Comments for Products Liability/Breach of WarrantyMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Products Liability/Breach of Warranty, on the following specific | of PJI Comments for Products Liability/Breach of WarrantyMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Products Liability/Breach of Warranty, on the following specific |
| topics:Strict LiabilityStrict | topics:•Strict Liability•Strict |
| Products LiabilityStrict LiabilityIntroductory StatementComment preceding | Products LiabilityStrict LiabilityIntroductory StatementComment preceding |
| (Vol. | PJI 2:120(Vol. |
| 1A, NY PJI, at 751 (2018))I.In GeneralII.Distinction Between Tort and Contract Theories — Recovery for Economic LossIII.Negligence, Strict Liability in Tort and Breach Of Warranty TheoriesA.BackgroundB.DefectC.Privity Not RequiredD.Requirement of a Commercial Seller1.In General2.Used Goods3.Used VehiclesE.Requirement of a Sale1.Sale-Service Distinctiona.Particular Services and Products2.Injury Prior to SaleF.Requirement of NoticeIV.Liability of Parties in the Distributive Chain Other Than the ManufacturerV.Liability Where Product Manufacturer Is Difficult to IdentifyVI.DisclaimerVII.Statute of LimitationsA.Negligence and Strict Liability1.Cases Involving Exposure to Toxic Substances2.Cases Involving “Repetitive Stress Injuries”B.Breach of WarrantyC.Fraudulent ConcealmentVIII.Comparative FaultIX.PreemptionX.Miscellaneous MattersStrict Products Liability (vol. 1A)Comment following | 1A, NY PJI, at 751 (2018))I.In GeneralII.Distinction Between Tort and Contract Theories — Recovery for Economic LossIII.Negligence, Strict Liability in Tort and Breach Of Warranty TheoriesA.BackgroundB.DefectC.Privity Not RequiredD.Requirement of a Commercial Seller1.In General2.Used Goods3.Used VehiclesE.Requirement of a Sale1.Sale-Service Distinctiona.Particular Services and Products2.Injury Prior to SaleF.Requirement of NoticeIV.Liability of Parties in the Distributive Chain Other Than the ManufacturerV.Liability Where Product Manufacturer Is Difficult to IdentifyVI.DisclaimerVII.Statute of LimitationsA.Negligence and Strict Liability1.Cases Involving Exposure to Toxic Substances2.Cases Involving “Repetitive Stress Injuries”B.Breach of WarrantyC.Fraudulent ConcealmentVIII.Comparative FaultIX.PreemptionX.Miscellaneous MattersStrict Products Liability (vol. 1A)Comment following |
| (Vol. | PJI 2:120(Vol. |
| 1A, NY PJI, at 787 (2018))I.Manufacturing DefectA.General PrinciplesB.Burden of Proof and Circumstantial Proof of a DefectC.Evidentiary ConsiderationsII.Design DefectA.General Principles1.Prescription DrugsB.Availability of Optional Safety EquipmentC.Manufacturers of Custom-Made ProductsD.Post-Sale ModificationsE.Misuse of ProductF.Statutory and Regulatory ConsiderationsG.Evidentiary ConsiderationsIII.Inadequate Warnings and InstructionsA.General PrinciplesB.Causation1.Open and Obvious Dangers2.Knowledgeable Users3.User's Failure to Read WarningsC.Adequacy of WarningsD.Duty to Warn of Post-Sale Modifications or Use With Other ProductsE.Post-Sale Modification or Destruction of WarningsF.Prescription Drugs and Medical DevicesG.Duty to Warn of Risks Arising from Sensitivities and Allergic ReactionsH.Statutory and Regulatory ConsiderationsI.Warning Duties of Successor Entities and Parties Other Than ManufacturersJ.Procedural and Evidentiary IssuesK.Statute of LimitationsL.Punitive DamagesChapter 9Injured Employees; Construction AccidentsA. Finding The Applicable Law and Instructions§ 9:1NY PJI TablesB. Illustrative Cases§ 9:2Construction Accident: personal injury, electrical shock, one plaintiff, one defendant§ 9:3Construction Accident: personal injury, asbestos exposure, one plaintiff, nine defendants§ 9:4Construction Accident: personal injury, foot, one plaintiff, one defendant, one third-party defendant§ 9:5Construction Accident: personal injury, knee, one plaintiff, one defendant§ 9:6Construction Accident: personal injury, back, neck, head, right ribs, and face, two plaintiffs, one defendant§ 9:7Construction Accident: personal injury to back and neck, one plaintiff and two defendants§ 9:8Construction Accident: personal injury to spinal cord, one plaintiff, one defendant and one third-party defendant§ 9:9Construction Accident: personal injury to back, one plaintiff, one defendant and one third-party defendant§ 9:10Construction Accident; personal injury, incomplete paraplegia, spinal cord, and various other injuries; two plaintiffs, one defendant, one third-party defendant§ 9:11Construction Accident: multiple leg fractures, one plaintiff, multiple defendantsAppendix 9A. Outline of PJI Comments for Injured EmployeesKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 9:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Injured Employee's Rights, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Injured Employee's Rights | 1A, NY PJI, at 787 (2018))I.Manufacturing DefectA.General PrinciplesB.Burden of Proof and Circumstantial Proof of a DefectC.Evidentiary ConsiderationsII.Design DefectA.General Principles1.Prescription DrugsB.Availability of Optional Safety EquipmentC.Manufacturers of Custom-Made ProductsD.Post-Sale ModificationsE.Misuse of ProductF.Statutory and Regulatory ConsiderationsG.Evidentiary ConsiderationsIII.Inadequate Warnings and InstructionsA.General PrinciplesB.Causation1.Open and Obvious Dangers2.Knowledgeable Users3.User's Failure to Read WarningsC.Adequacy of WarningsD.Duty to Warn of Post-Sale Modifications or Use With Other ProductsE.Post-Sale Modification or Destruction of WarningsF.Prescription Drugs and Medical DevicesG.Duty to Warn of Risks Arising from Sensitivities and Allergic ReactionsH.Statutory and Regulatory ConsiderationsI.Warning Duties of Successor Entities and Parties Other Than ManufacturersJ.Procedural and Evidentiary IssuesK.Statute of LimitationsL.Punitive DamagesChapter 9Injured Employees; Construction AccidentsA. Finding The Applicable Law and Instructions§ 9:1NY PJI TablesB. Illustrative Cases§ 9:2Construction Accident: personal injury, electrical shock, one plaintiff, one defendant§ 9:3Construction Accident: personal injury, asbestos exposure, one plaintiff, nine defendants§ 9:4Construction Accident: personal injury, foot, one plaintiff, one defendant, one third-party defendant§ 9:5Construction Accident: personal injury, knee, one plaintiff, one defendant§ 9:6Construction Accident: personal injury, back, neck, head, right ribs, and face, two plaintiffs, one defendant§ 9:7Construction Accident: personal injury to back and neck, one plaintiff and two defendants§ 9:8Construction Accident: personal injury to spinal cord, one plaintiff, one defendant and one third-party defendant§ 9:9Construction Accident: personal injury to back, one plaintiff, one defendant and one third-party defendant§ 9:10Construction Accident; personal injury, incomplete paraplegia, spinal cord, and various other injuries; two plaintiffs, one defendant, one third-party defendant§ 9:11Construction Accident: multiple leg fractures, one plaintiff, multiple defendantsAppendix 9A. Outline of PJI Comments for Injured EmployeesKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 9:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Injured Employee's Rights, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Injured Employee's Rights |
| [ | [PJI 2:215 |
| to | to |
| ](NY | 2:219](NY |
| PJI Volume 1B)[“****” — see Detailed Table of Contents for Comment]A. Introductory Statement (to | PJI Volume 1B)[“****” — see Detailed Table of Contents for Comment]A. Introductory Statement (to |
| )****B. | PJI 2:215)****B. |
| Common Law Action — Cases Arising Under Workers' Compensation law § 11 and Employers Liability Law § 5 | Common Law Action — Cases Arising Under Workers' Compensation law § 11 and Employers Liability Law § 5 |
| ()C. | (PJI 2:215)C. |
| Introductory Statement (to | Introductory Statement (to |
| ) | PJI 2:216) |
| ****D. Statutory Negligence — Safe Place to Work | ****D. Statutory Negligence — Safe Place to Work |
| ()E. | (PJI 2:216)E. |
| Violation of Industrial Rule — Vicarious Liability — Nondelegable Duty of Owner/Subcontractor — Labor Law § 241(6) (2:216A, 2:216A1)****F. Action Under Statute Imposing Absolute Liability (2:217–2:217.2)****G. Compensation Cases — Assignment of Cause of Action to Compensation Carrier (2:219)Historical Revision Notes:In 2005, | Violation of Industrial Rule — Vicarious Liability — Nondelegable Duty of Owner/Subcontractor — Labor Law § 241(6) (2:216A, 2:216A1)****F. Action Under Statute Imposing Absolute Liability (2:217–2:217.2)****G. Compensation Cases — Assignment of Cause of Action to Compensation Carrier (2:219)Historical Revision Notes:In 2005, |
| PJI 2:217 |
| was revised.In 2006, | was revised.In 2006, |
| .1, | PJI 2:216A.1, |
| 2:217.1, and 2:217.2 were revised.In 2010, | 2:217.1, and 2:217.2 were revised.In 2010, |
| PJI 2:216 |
| was revised.In 2014, former | was revised.In 2014, former |
| PJI 2:217.2 |
| was redesignated 2:217.2a, and was replaced by a new | was redesignated 2:217.2a, and was replaced by a new |
| PJI 2:217.2 |
| covering cases in which there is a question of fact as to whether a plaintiff's own negligence was the sole proximate cause of the plaintiff's injuries.B. Illustrative Cases§ 9:2 Construction Accident: personal injury, electrical shock, one plaintiff, one defendantA. BackgroundType of Case: Construction AccidentType of Injury: Injuries due to electrical shockCase Name: Gayle v. Port Authority of New York and New JerseyCourt: Supreme Court of New YorkJudge: George FriedmanDocket Number: 0013850/96Verdict Date: June 8, 2000Outcome: Verdict for plaintiff. However, a new trial was ordered unless the plaintiffs stipulated to reduce plaintiff Phillip Gayle's past pain and suffering award from $1.5 million to $750,000 and his future pain and suffering award from $1 million to $500,000, and to reduce plaintiff Carmen Gayle's award for past loss of services from $100,000 to $25,000 and her award for future loss of services award from $25,000 to $10,000. (See Trial order 2002, WL 34081949 and Appellate Opinion, 775 N.Y.S.2d 2.)Brief Summary of Facts: The plaintiff alleged that he was injured due to the defendant Port Authority's failure to de-energize a circuit that the plaintiff alleges gave him an electric shock that caused his injuries. The Port Authority asserted, however, that plaintiff was not permitted to work on the circuit he alleged gave him the electric shock. The defendant Port Authority further asserted that the circuits on which the plaintiff was permitted to work were in fact de-energized.B. Jury Instructions Given by the | covering cases in which there is a question of fact as to whether a plaintiff's own negligence was the sole proximate cause of the plaintiff's injuries.B. Illustrative Cases§ 9:2 Construction Accident: personal injury, electrical shock, one plaintiff, one defendantA. BackgroundType of Case: Construction AccidentType of Injury: Injuries due to electrical shockCase Name: Gayle v. Port Authority of New York and New JerseyCourt: Supreme Court of New YorkJudge: George FriedmanDocket Number: 0013850/96Verdict Date: June 8, 2000Outcome: Verdict for plaintiff. However, a new trial was ordered unless the plaintiffs stipulated to reduce plaintiff Phillip Gayle's past pain and suffering award from $1.5 million to $750,000 and his future pain and suffering award from $1 million to $500,000, and to reduce plaintiff Carmen Gayle's award for past loss of services from $100,000 to $25,000 and her award for future loss of services award from $25,000 to $10,000. (See Trial order 2002, WL 34081949 and Appellate Opinion, 775 N.Y.S.2d 2.)Brief Summary of Facts: The plaintiff alleged that he was injured due to the defendant Port Authority's failure to de-energize a circuit that the plaintiff alleges gave him an electric shock that caused his injuries. The Port Authority asserted, however, that plaintiff was not permitted to work on the circuit he alleged gave him the electric shock. The defendant Port Authority further asserted that the circuits on which the plaintiff was permitted to work were in fact de-energized.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review of | Review of |
| Principles3. . | Principles3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Consider only Testimony and | Consider only Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:25A. |
| Jurors Use of Professional | Jurors Use of Professional |
| Expertise8. . | Expertise8. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict9. . | Verdict9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy10. . Conclusion11. . | Sympathy10. PJI 1:28. Conclusion11. PJI 1:29. |
| Alternate | Alternate |
| Jurors12. . | Jurors12. PJI 1:70. |
| Circumstantial | Circumstantial |
| Evidence13. . | Evidence13. PJI 1:90. |
| Expert Witness—Drs. Ira Casson; Selwyn Z. Freed, Rodney Becher, and Mr. Howard I. Edelson, a safety consultant, all called by the plaintiffs, and Dr. “Rowan,” and Dr. William Head, all called by the | Expert Witness—Drs. Ira Casson; Selwyn Z. Freed, Rodney Becher, and Mr. Howard I. Edelson, a safety consultant, all called by the plaintiffs, and Dr. “Rowan,” and Dr. William Head, all called by the |
| defendant14. . | defendant14. PJI 1:92. |
| Interested Witness Employee or | Interested Witness Employee or |
| Party15. . | Party15. PJI 1:105. |
| General Instruction—Charge After | General Instruction—Charge After |
| Verdict16. . | Verdict16. PJI 2:10. |
| Negligence | Negligence |
| Defined17. . | Defined17. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to | Injured Employee—Statutory Negligence—Safe Place to |
| Work18. . | Work18. PJI 2:216A. |
| Injured Employee—Violation of Industrial Rule—Vicarious Liability—Nondelegable Duty of Owner/Subcontractor—Labor Law § 241(6) (modified—transcript pages 25, 26—Modified by specifying particular violations of rules promulgated by the Commissioner of | Injured Employee—Violation of Industrial Rule—Vicarious Liability—Nondelegable Duty of Owner/Subcontractor—Labor Law § 241(6) (modified—transcript pages 25, 26—Modified by specifying particular violations of rules promulgated by the Commissioner of |
| Labor).Plaintiff | Labor)12 NYCRR 23-1.13(b)(4).Plaintiff |
| claims that the defendant violated a regulation. If you find that defendant violated the regulation, which I will read to you shortly, you may consider the violation as some evidence of negligence along with the other evidence in the case, provided that such violation was a substantial factor in bringing about the occurrence.Section 23-1.13 Subdivision b, Subdivision 4 of the Industrial Code of the State of New York provides the following, and I quote:“Protection of employees. No employers shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he made contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit.”This section of the Industrial Code applies to defendant Port Authority even though it is not plaintiff's employer. In this case, plaintiff alleges that he was injured due to defendant Port Authority's failure to de-energize the circuit which plaintiff alleges gave him the electric shock which caused his injuries.The Port Authority asserts, however, that plaintiff was not permitted to work on the circuit he alleges gave him the electric shock. The defendant Port Authority further asserts that the circuits on which the plaintiff was permitted to work were | claims that the defendant violated a regulation. If you find that defendant violated the regulation, which I will read to you shortly, you may consider the violation as some evidence of negligence along with the other evidence in the case, provided that such violation was a substantial factor in bringing about the occurrence.Section 23-1.13 Subdivision b, Subdivision 4 of the Industrial Code of the State of New York provides the following, and I quote:“Protection of employees. No employers shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he made contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit.”This section of the Industrial Code applies to defendant Port Authority even though it is not plaintiff's employer. In this case, plaintiff alleges that he was injured due to defendant Port Authority's failure to de-energize the circuit which plaintiff alleges gave him the electric shock which caused his injuries.The Port Authority asserts, however, that plaintiff was not permitted to work on the circuit he alleges gave him the electric shock. The defendant Port Authority further asserts that the circuits on which the plaintiff was permitted to work were |
| de-energized.19. . | de-energized.19. PJI 2:36. |
| Comparative | Comparative |
| Fault20. . | Fault20. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General21. . Damages—General22. . | General21. PJI 2:277. Damages—General22. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering23. . | Suffering23. PJI 2:280.2. |
| Damages—Personal Injury—Injury and Pain and Suffering [Supplemental | Damages—Personal Injury—Injury and Pain and Suffering [Supplemental |
| Instruction]24. . | Instruction]24. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (modified—transcript pages 32, 33)If you find that injured plaintiff's wife is entitled to recover, you will award her damages for the pecuniary loss which you find she sustained by the loss of her spouse's services and society.In deciding the amount of such damages, you may take into consideration the nature and extent of the husband's services and society before the injury, including his disposition, temperament, character and attainments; the interest he showed in his home, the social life of his family and in the comfort, happiness and education and general welfare of the members of the family; his acts of affection, love and sexual intercourse and the extent to which the injuries he sustained in the incident prevented him from performing such services and providing such society.You will award plaintiff's wife such a amount based upon the evidence and upon your own observations, experience and knowledge conscientiously applied to the facts and circumstances as in your judgment will compensate her for the pecuniary loss which you find she has sustained and is reasonably certain to sustain in the future, by reason of her spouse's inability to perform such services and provide such society as a result of his | Damages—Personal Injury—Future—Permanence—Life Expectancy Tables (modified—transcript pages 32, 33)If you find that injured plaintiff's wife is entitled to recover, you will award her damages for the pecuniary loss which you find she sustained by the loss of her spouse's services and society.In deciding the amount of such damages, you may take into consideration the nature and extent of the husband's services and society before the injury, including his disposition, temperament, character and attainments; the interest he showed in his home, the social life of his family and in the comfort, happiness and education and general welfare of the members of the family; his acts of affection, love and sexual intercourse and the extent to which the injuries he sustained in the incident prevented him from performing such services and providing such society.You will award plaintiff's wife such a amount based upon the evidence and upon your own observations, experience and knowledge conscientiously applied to the facts and circumstances as in your judgment will compensate her for the pecuniary loss which you find she has sustained and is reasonably certain to sustain in the future, by reason of her spouse's inability to perform such services and provide such society as a result of his |
| injuries.25. . | injuries.25. PJI 2:325. |
| Damages—Mitigation—General Principles (Failure to Have an Operation) (modified—transcript pages 33, 34)A person who has been injured is not permitted to recover for damages that could have been and could be avoided by using means which a reasonably prudent person would have used to alleviate the pain or treat the alleged injury. Defendant claims that if the plaintiff is in fact injured and submitted to other treatments such as the vacuum pump, surgery, Viagra or other treatments as you may recall the testimony, his condition would be greatly alleviated and that such treatment is not dangerous.Plaintiff claims that he declined to use the vacuum pump, surgery or Viagra because of attendant risk and potential side effects. The burden of proving that plaintiff failed to avail himself of a reasonably safe procedure which would have completely cured or greatly alleviated his injury is on the defendant. If you find that plaintiff is entitled to recover in this action, then in deciding the nature and permanence of his injury and what damages he may recover for the injury, you must decide in whether in refusing to avail himself of the possible treatments, plaintiff acted as a reasonably prudent person would have acted under the circumstances. In deciding that question, you will take into consideration the evidence concerning the nature of the treatments, the extent to which such treatments involve danger to the plaintiff, and the results to be expected from them. If you find that in deciding not to avail himself of any of the other treatments, the plaintiff acted as a reasonably prudent person would have acted, then the plaintiff is entitled to recover for his injuries, as you find them to be, without regard to the possibility of other treatments. If, however, you find that the other treatment is what a reasonably prudent person would submit to and that the other treatment would cure or treat the injury, you will take that fact into consideration in arriving at the amount of damages that you award.C. Case Documents Available on Westlaw1.Appellate Opinion, Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 183, 775 N.Y.S.2d 2 (N.Y.A.D. 1 Dept. 2004)Reply Affirmation, 2006 WL 4550690Affirmation in Support, 2004 WL 5320563Trial Order, 2003 WL 25338443Trial Order, 2002 WL 34081949Reply Affirmation, 2002 WL 33002421Expert Trial Transcript, 2000 WL 34614877Jury Instruction, 2000 WL 34613193Docket, 0013850/1996Affirmation in Opposition, | Damages—Mitigation—General Principles (Failure to Have an Operation) (modified—transcript pages 33, 34)A person who has been injured is not permitted to recover for damages that could have been and could be avoided by using means which a reasonably prudent person would have used to alleviate the pain or treat the alleged injury. Defendant claims that if the plaintiff is in fact injured and submitted to other treatments such as the vacuum pump, surgery, Viagra or other treatments as you may recall the testimony, his condition would be greatly alleviated and that such treatment is not dangerous.Plaintiff claims that he declined to use the vacuum pump, surgery or Viagra because of attendant risk and potential side effects. The burden of proving that plaintiff failed to avail himself of a reasonably safe procedure which would have completely cured or greatly alleviated his injury is on the defendant. If you find that plaintiff is entitled to recover in this action, then in deciding the nature and permanence of his injury and what damages he may recover for the injury, you must decide in whether in refusing to avail himself of the possible treatments, plaintiff acted as a reasonably prudent person would have acted under the circumstances. In deciding that question, you will take into consideration the evidence concerning the nature of the treatments, the extent to which such treatments involve danger to the plaintiff, and the results to be expected from them. If you find that in deciding not to avail himself of any of the other treatments, the plaintiff acted as a reasonably prudent person would have acted, then the plaintiff is entitled to recover for his injuries, as you find them to be, without regard to the possibility of other treatments. If, however, you find that the other treatment is what a reasonably prudent person would submit to and that the other treatment would cure or treat the injury, you will take that fact into consideration in arriving at the amount of damages that you award.C. Case Documents Available on Westlaw1.Appellate Opinion, Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 183, 775 N.Y.S.2d 2 (N.Y.A.D. 1 Dept. 2004)Reply Affirmation, 2006 WL 4550690Affirmation in Support, 2004 WL 5320563Trial Order, 2003 WL 25338443Trial Order, 2002 WL 34081949Reply Affirmation, 2002 WL 33002421Expert Trial Transcript, 2000 WL 34614877Jury Instruction, 2000 WL 34613193Docket, 0013850/1996Affirmation in Opposition, |
| 2.Sample | 1996 WL 344010152.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: electric! /p injuryD. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: electric! /p injuryD. Research References1.Key |
| Numbers , , | NumbersNegligence 1728, 1732, 1738Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:3 Construction | 7:355§ 9:3 Construction |
| Accident: personal injury, asbestos exposure, one plaintiff, nine defendantsA. BackgroundType of Case: Construction AccidentType of Injury: Injuries due to asbestos exposureCase Name: In Re: New York Asbestos LitigationCourt: Supreme Court of New YorkJudge: Diane A. LebedeffDocket Number: 03/118793Verdict Date: March 26, 2003Outcome: Verdict for plaintiff of $46,000,000Brief Summary of Facts: Plaintiffs contended that the defendants failed to provide a safe workplace, causing exposure to asbestos dust in the air, leading to mesothelioma. The defendants invoked proximate cause as a defense.B. Jury Instructions Given by the | Accident: personal injury, asbestos exposure, one plaintiff, nine defendantsA. BackgroundType of Case: Construction AccidentType of Injury: Injuries due to asbestos exposureCase Name: In Re: New York Asbestos LitigationCourt: Supreme Court of New YorkJudge: Diane A. LebedeffDocket Number: 03/118793Verdict Date: March 26, 2003Outcome: Verdict for plaintiff of $46,000,000Brief Summary of Facts: Plaintiffs contended that the defendants failed to provide a safe workplace, causing exposure to asbestos dust in the air, leading to mesothelioma. The defendants invoked proximate cause as a defense.B. Jury Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits3. . | Exhibits3. PJI 1:78. |
| General Instruction-Stipulation of | General Instruction-Stipulation of |
| Facts4. . | Facts4. PJI 1:40. |
| Consider Only Competent | Consider Only Competent |
| Evidence5. . | Evidence5. PJI 1:39. |
| No Inference From | No Inference From |
| Rulings6. . | Rulings6. PJI 1:27. |
| Exclude | Exclude |
| Sympathy7. . | Sympathy7. PJI 1:37. |
| Jury | Jury |
| Function8. . | Function8. PJI 1:38. |
| Court's Function (modified by excluding the following sentences: “You should not consider or accept any advice about the law from anyone else but me” and “Your verdict will be in the form of answers to written questions which I will submit to you” and by adding the following sentence: “Now, let me turn to more specific principles as you consider the evidence before | Court's Function (modified by excluding the following sentences: “You should not consider or accept any advice about the law from anyone else but me” and “Your verdict will be in the form of answers to written questions which I will submit to you” and by adding the following sentence: “Now, let me turn to more specific principles as you consider the evidence before |
| you”)9. . | you”)9. PJI 1:70. |
| Circumstantial Evidence (modified)You have heard much testimony. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence. Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.In reaching a conclusion based upon circumstantial evidence, the facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn. You may not guess or speculate.GIVE | Circumstantial Evidence (modified)You have heard much testimony. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence. Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.In reaching a conclusion based upon circumstantial evidence, the facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn. You may not guess or speculate.GIVE |
| EXAMPLE10. . | EXAMPLE10. PJI 1:8. |
| Weighing Testimony (modified)As you decide how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be applied. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the same tests that you apply in your deliberations.The items to be taken into consideration in determining the weight you will give to the testimony of a witness include: The interest or lack of interest of the witness in the outcome of the case; the bias or the prejudice of the witness, if there be any; the age, the appearance, the manner of the witness as the witness testified; the opportunity that the witness had to observe the facts about which he or she testified; the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the | Weighing Testimony (modified)As you decide how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be applied. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the same tests that you apply in your deliberations.The items to be taken into consideration in determining the weight you will give to the testimony of a witness include: The interest or lack of interest of the witness in the outcome of the case; the bias or the prejudice of the witness, if there be any; the age, the appearance, the manner of the witness as the witness testified; the opportunity that the witness had to observe the facts about which he or she testified; the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the |
| case.11. . | case.11. PJI 1:91. |
| Interested Witness To Be Charged As To | Interested Witness To Be Charged As To |
| Plaintiff12. . | Plaintiff12. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness13. . | Witness13. PJI 1:22. |
| Falsus In | Falsus In |
| Uno14. . | Uno14. PJI 1:97. |
| General Instruction—Special Verdicts (modified)I advised you that you will have a written list of questions, which counsel have also mentioned in their summations. Those written questions, called a jury interrogatory, will be distributed to you at approximately the midpoint of this charge and I will go over the questions with you.This case will be decided on the basis of the answers that you give to certain questions that will be submitted to you. The order of the questions will give you a road map to guide your deliberations.Each of the questions asked will call for a “Yes” or “No” answer, a percentage or a numerical figure. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to any question, but the same five persons need not agree on all of the answers. When five of you have agreed on any answer, the foreperson of the jury will write the answer in the space provided for each answer. After you have answered all the appropriate questions, each juror will sign the end of the interrogatory. When you have answered all the questions that require answers, report to the court officer.Do not draw any assumptions from the questions, from the wording of the questions, from the order of the questions, or from my instructions on them that the court gives any indication of what the answers should be.You are being presented with a number of different legal claims. The different sections of the interrogatory will make the differences | General Instruction—Special Verdicts (modified)I advised you that you will have a written list of questions, which counsel have also mentioned in their summations. Those written questions, called a jury interrogatory, will be distributed to you at approximately the midpoint of this charge and I will go over the questions with you.This case will be decided on the basis of the answers that you give to certain questions that will be submitted to you. The order of the questions will give you a road map to guide your deliberations.Each of the questions asked will call for a “Yes” or “No” answer, a percentage or a numerical figure. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to any question, but the same five persons need not agree on all of the answers. When five of you have agreed on any answer, the foreperson of the jury will write the answer in the space provided for each answer. After you have answered all the appropriate questions, each juror will sign the end of the interrogatory. When you have answered all the questions that require answers, report to the court officer.Do not draw any assumptions from the questions, from the wording of the questions, from the order of the questions, or from my instructions on them that the court gives any indication of what the answers should be.You are being presented with a number of different legal claims. The different sections of the interrogatory will make the differences |
| clear.15. . | clear.15. PJI 1:23. |
| Burden of | Burden of |
| Proof16. . | Proof16. PJI 2:70. |
| Proximate Cause—In General (modified)As you consider the claims against the various entities, in relation to each entity you will be asked whether the action or inaction of that entity was a substantial factor in bringing about plaintiff's mesotheleomia. The legal term used for this concept is proximate cause.An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.Where there are independent and separate wrongful acts or omissions of two or more parties, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.Even where the wrongful acts or omissions occurred at separate times, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.There may be more than one cause of an injury, but to be found a proximate cause, each must be a substantial factor in bringing about the injury. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to | Proximate Cause—In General (modified)As you consider the claims against the various entities, in relation to each entity you will be asked whether the action or inaction of that entity was a substantial factor in bringing about plaintiff's mesotheleomia. The legal term used for this concept is proximate cause.An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.Where there are independent and separate wrongful acts or omissions of two or more parties, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.Even where the wrongful acts or omissions occurred at separate times, each such act or omission may be regarded as a cause of that injury provided that each was a substantial factor in bringing about that injury.There may be more than one cause of an injury, but to be found a proximate cause, each must be a substantial factor in bringing about the injury. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to |
| it.17. . | it.17. PJI 1:26. |
| Five Sixths | Five Sixths |
| Verdict18. . | Verdict18. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to Work (modified)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Under this statute, an owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.In this action, Plaintiff claims that the workplace at three powerhouses—Astoria 6, Bowline, and Northport—were unsafe and that the unsafe conditions were created because of the defendants' negligence. The defendants deny these claims. In deciding these issues, you shall separately consider each workplace.In determining whether a particular defendant failed to provide a safe workplace, several factors must be considered. A site-owner is not liable on a claim merely because a plaintiff may have been exposed to asbestos at that site-owner's premises.First, you must find plaintiff was exposed to an unsafe condition. The unsafe condition which plaintiff urges existed was an exposure to asbestos dust in the air of each power plant. You heard argument as to whether asbestos was in the air at each site. You must determine the plaintiff has established by a fair preponderance of the credible evidence that there was such an unsafe asbestos exposure at each site to which plaintiff was exposed.Second, the legislature has determined that a site-owner is liable under this statute only if it exercises supervision and control over the operations which gave rise to the asbestos exposure. An owner which retains only general supervisory power or inspection privileges is not liable under this provision.As you consider whether defendant Con Edison exercised supervision and control over Astoria 6, you must also consider the actions of EBASCO as the actions of Con Edison. Similarly, as you consider whether defendant Con Edison exercised supervision and control over Bowline, you must also consider the actions of Orange & Rockland as the actions of Con Edison. The governing documents designate EBASCO and Orange & Rockland as agents of Con Edison and, accordingly, you are to consider their actions as fully chargeable to Con Edison.Third, if you find an unsafe condition, as well as supervision and control, you will next consider whether the unsafe condition resulted from the failure of the plant owner to use reasonable care in providing a safe workplace, or whether the unsafe condition resulted from a failure to use reasonable care to correct the condition after the defendant or its agent knew, or in the use of reasonable care, should have known of the unsafe condition.You may consider whether the site-owners knew or had reason to know that asbestos products were used and the site and whether the site-owners knew or had reason to know about the hazards of asbestos dust.As you consider what a site-owner had reason to know, this factor is weighed by the standard of what a reasonable person would know in the exercise of reasonable care under the circumstances then and there existing. In making your determination you will consider what information, if any, about the hazards of asbestos on construction sites was reasonably available to each site-owner at the time of the alleged exposure.If you decide that any of the defendants' workplaces had an unsafe condition, that such owner exercised supervision and control directly or through an agent, and that the unsafe condition resulted from the failure of the defendant owner or its agent to exercise reasonable care in making the workplace safe or or keeping it safe, you will find for the plaintiff for you will have determined that such defendant failed to provide a safe place to work.As you separately consider each site, if you find that the plaintiff has not established each of these three elements by a fair preponderance of the credible evidence, you will answer “no” for the plaintiff has not established a failure to provide a safe place to work within the statutory definition.If you find that there has been a failure to provide a safe place to work, you will next determine whether such failure was a substantial factor in causing plaintiff's | Injured Employee—Statutory Negligence—Safe Place to Work (modified)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Under this statute, an owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.In this action, Plaintiff claims that the workplace at three powerhouses—Astoria 6, Bowline, and Northport—were unsafe and that the unsafe conditions were created because of the defendants' negligence. The defendants deny these claims. In deciding these issues, you shall separately consider each workplace.In determining whether a particular defendant failed to provide a safe workplace, several factors must be considered. A site-owner is not liable on a claim merely because a plaintiff may have been exposed to asbestos at that site-owner's premises.First, you must find plaintiff was exposed to an unsafe condition. The unsafe condition which plaintiff urges existed was an exposure to asbestos dust in the air of each power plant. You heard argument as to whether asbestos was in the air at each site. You must determine the plaintiff has established by a fair preponderance of the credible evidence that there was such an unsafe asbestos exposure at each site to which plaintiff was exposed.Second, the legislature has determined that a site-owner is liable under this statute only if it exercises supervision and control over the operations which gave rise to the asbestos exposure. An owner which retains only general supervisory power or inspection privileges is not liable under this provision.As you consider whether defendant Con Edison exercised supervision and control over Astoria 6, you must also consider the actions of EBASCO as the actions of Con Edison. Similarly, as you consider whether defendant Con Edison exercised supervision and control over Bowline, you must also consider the actions of Orange & Rockland as the actions of Con Edison. The governing documents designate EBASCO and Orange & Rockland as agents of Con Edison and, accordingly, you are to consider their actions as fully chargeable to Con Edison.Third, if you find an unsafe condition, as well as supervision and control, you will next consider whether the unsafe condition resulted from the failure of the plant owner to use reasonable care in providing a safe workplace, or whether the unsafe condition resulted from a failure to use reasonable care to correct the condition after the defendant or its agent knew, or in the use of reasonable care, should have known of the unsafe condition.You may consider whether the site-owners knew or had reason to know that asbestos products were used and the site and whether the site-owners knew or had reason to know about the hazards of asbestos dust.As you consider what a site-owner had reason to know, this factor is weighed by the standard of what a reasonable person would know in the exercise of reasonable care under the circumstances then and there existing. In making your determination you will consider what information, if any, about the hazards of asbestos on construction sites was reasonably available to each site-owner at the time of the alleged exposure.If you decide that any of the defendants' workplaces had an unsafe condition, that such owner exercised supervision and control directly or through an agent, and that the unsafe condition resulted from the failure of the defendant owner or its agent to exercise reasonable care in making the workplace safe or or keeping it safe, you will find for the plaintiff for you will have determined that such defendant failed to provide a safe place to work.As you separately consider each site, if you find that the plaintiff has not established each of these three elements by a fair preponderance of the credible evidence, you will answer “no” for the plaintiff has not established a failure to provide a safe place to work within the statutory definition.If you find that there has been a failure to provide a safe place to work, you will next determine whether such failure was a substantial factor in causing plaintiff's |
| injury19. . | injury19. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General20. . | General20. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to Work(modified as to defendants PASNY, general contractors, and employers)Defendants ask you to consider that other entities also breached their statutory obligation to provide a safe place to work. One such defendant, PASNY which is shorthand for the Power Authority of the State of New York, purchased the Astoria 6 power plant on December 13, 1974, and Con Edison bears no responsibility for that plant after that date. The claim against PASNY is to be determined under the same principles 1 advised you apply to a site owner.Each defendant has the burden of proof to establish this claim and that a breach of this duty was a proximate cause of plaintiff's injury.The balance of these entities are general contractors and plaintiff's employers. Their duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that a general contractor and employer assure the workplace “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Such general contractors and employer owe a duty to workers to use reasonable care to make the workplaces that are under the control of the general contractor and employer are reasonably safe. The general contractor and employer who exercises control is required to correct an unsafe condition that is known to the general contractor or employer and its employees. The general contractor and employer who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The general contractor and employer is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the general contractor and employer or its employees should have known of its existence and corrected it.Defendants assert that the evidence establishes that each such general contractor and employer failed to provide a safe place to work and that such failure was a substantial factor in causing plaintiff's disease.Author's Comment: See the extensive Comment preceding and following | Injured Employee—Statutory Negligence—Safe Place to Work(modified as to defendants PASNY, general contractors, and employers)Defendants ask you to consider that other entities also breached their statutory obligation to provide a safe place to work. One such defendant, PASNY which is shorthand for the Power Authority of the State of New York, purchased the Astoria 6 power plant on December 13, 1974, and Con Edison bears no responsibility for that plant after that date. The claim against PASNY is to be determined under the same principles 1 advised you apply to a site owner.Each defendant has the burden of proof to establish this claim and that a breach of this duty was a proximate cause of plaintiff's injury.The balance of these entities are general contractors and plaintiff's employers. Their duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that a general contractor and employer assure the workplace “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”Such general contractors and employer owe a duty to workers to use reasonable care to make the workplaces that are under the control of the general contractor and employer are reasonably safe. The general contractor and employer who exercises control is required to correct an unsafe condition that is known to the general contractor or employer and its employees. The general contractor and employer who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The general contractor and employer is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the general contractor and employer or its employees should have known of its existence and corrected it.Defendants assert that the evidence establishes that each such general contractor and employer failed to provide a safe place to work and that such failure was a substantial factor in causing plaintiff's disease.Author's Comment: See the extensive Comment preceding and following |
| , | PJI 2:216, |
| at 1B | at 1B |
| , | NY PJI3d 2:216, |
| at 298 to 359 (2018) (covering injured employees' rights under the Labor Law generally), and that following | at 298 to 359 (2018) (covering injured employees' rights under the Labor Law generally), and that following |
| , | PJI 2:216A, |
| at 1B NY PJI3d 2:216A, at 362 to 457 (2018) (with focused coverage of numerous Industrial Code | at 1B NY PJI3d 2:216A, at 362 to 457 (2018) (with focused coverage of numerous Industrial Code |
| Regulations).21. . | Regulations).21. PJI 2:70. |
| Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” | Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” |
| language)22. . | language)22. PJI 1:23. |
| Burden of Proof (modified as to contractors)Defendants also ask you to consider that other entities are also responsible for plaintiff's injury because such defendants were negligent. These claims are raised against contractors whose work is claimed to have exposed plaintiff to asbestos dust.Each defendant has the burden of proof to establish that any other entity was negligent and that their negligence was a proximate cause of plaintiff's | Burden of Proof (modified as to contractors)Defendants also ask you to consider that other entities are also responsible for plaintiff's injury because such defendants were negligent. These claims are raised against contractors whose work is claimed to have exposed plaintiff to asbestos dust.Each defendant has the burden of proof to establish that any other entity was negligent and that their negligence was a proximate cause of plaintiff's |
| injury.23. . | injury.23. PJI 2:10. |
| Common Law Standard of Care-Negligence | Common Law Standard of Care-Negligence |
| Defined—Generally24. . | Defined—Generally24. PJI 2:12. |
| Common Law Standard of | Common Law Standard of |
| Care-Foreseeability—Generally25. . | Care-Foreseeability—Generally25. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General26. . | General26. PJI 2:141. |
| Strict Liability and | Strict Liability and |
| . | PJI 2:135. |
| Products Liability—Manufacturer'sLiability to Remote Consumer for Negligence-Duty to Warn (combined and modified)Defendants ask you to consider that the manufacturers and distributors of asbestos products should also be held responsible in this matter under principles of law described as product liability, which is governed by a different legal standard than a safe place to work claim or a negligence claim.Each defendant bears the burden of proving that the product was defective under this standard and that the defect was a substantial factor in producing plaintiff's injury.A manufacturer, wholesaler, distributor, retailer, processor of materials, maker of a component part who sells a product that is not reasonably safe—that is, if the product is so likely to be harmful to persons that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition—is liable for injury which results from use of the product when the product is used for its intended or reasonably foreseeable purpose.The manufacturer or distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer or distributor should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers of which it knows or which in the use of reasonable care should have been known and which the user of the product ordinarily would not discover. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances. You do not need to find that the particular products liability defendant actually knew of their product's potential for causing injury in order to determine that there was an obligation to warn.A manufacturer or distributor may be held liable for failing to warn concerning dangers in the use of the product, which become known after the product is manufactured or sold. A manufacturer or distributor has a duty to take reasonable steps to warn product users of dangers that are discovered after the product is manufactured or sold. If a warning is given, the warning must be commensurate with the degree of risk involved in the ordinary use of the product. The warning must sufficiently convey the risk of danger associated with the product. A warning is not sufficient when the seriousness of the risk requires more.A products liability defendant's duty to give adequate warning is nondelegable. That means that such defendants may not rely on others to issue an adequate warning. They cannot expect people outside the distribution chain to know of the dangers and/or to warn of them.A manufacturer or seller is held to the knowledge and skill of an expert and is conclusively presumed to possess all of the knowledge that is available to or could be possessed by an expert. If information was available concerning the dangers of defendant's asbestos-containing products, defendant is conclusively presumed to know that information.Further, a manufacturer or other products liability defendant must keep abreast of knowledge of the effect of its products as gained through research, testing, scientific literature and other available sources or methods. Such defendant is obligated to keep informed of scientific and technical discoveries in its particular field.There is a presumption that had a proper and adequate warning been given, it would have been heeded and the injury | Products Liability—Manufacturer'sLiability to Remote Consumer for Negligence-Duty to Warn (combined and modified)Defendants ask you to consider that the manufacturers and distributors of asbestos products should also be held responsible in this matter under principles of law described as product liability, which is governed by a different legal standard than a safe place to work claim or a negligence claim.Each defendant bears the burden of proving that the product was defective under this standard and that the defect was a substantial factor in producing plaintiff's injury.A manufacturer, wholesaler, distributor, retailer, processor of materials, maker of a component part who sells a product that is not reasonably safe—that is, if the product is so likely to be harmful to persons that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition—is liable for injury which results from use of the product when the product is used for its intended or reasonably foreseeable purpose.The manufacturer or distributor of a product which is reasonably certain to be dangerous if used in a way which the manufacturer or distributor should reasonably foresee it would be used is under a duty to use reasonable care to give adequate warning of any dangers of which it knows or which in the use of reasonable care should have been known and which the user of the product ordinarily would not discover. Reasonable care means that degree of care which a reasonably prudent person would use under the same circumstances. You do not need to find that the particular products liability defendant actually knew of their product's potential for causing injury in order to determine that there was an obligation to warn.A manufacturer or distributor may be held liable for failing to warn concerning dangers in the use of the product, which become known after the product is manufactured or sold. A manufacturer or distributor has a duty to take reasonable steps to warn product users of dangers that are discovered after the product is manufactured or sold. If a warning is given, the warning must be commensurate with the degree of risk involved in the ordinary use of the product. The warning must sufficiently convey the risk of danger associated with the product. A warning is not sufficient when the seriousness of the risk requires more.A products liability defendant's duty to give adequate warning is nondelegable. That means that such defendants may not rely on others to issue an adequate warning. They cannot expect people outside the distribution chain to know of the dangers and/or to warn of them.A manufacturer or seller is held to the knowledge and skill of an expert and is conclusively presumed to possess all of the knowledge that is available to or could be possessed by an expert. If information was available concerning the dangers of defendant's asbestos-containing products, defendant is conclusively presumed to know that information.Further, a manufacturer or other products liability defendant must keep abreast of knowledge of the effect of its products as gained through research, testing, scientific literature and other available sources or methods. Such defendant is obligated to keep informed of scientific and technical discoveries in its particular field.There is a presumption that had a proper and adequate warning been given, it would have been heeded and the injury |
| avoided.27. . | avoided.27. PJI 2:70. |
| Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” | Proximate Cause—In General (basic charge reiterated, but modified to eliminate “slight or trivial” |
| language)28. . | language)28. PJI 2:275. |
| Comparative Fault—Apportionment of Fault Between Defendants (modified)As to each party or entity you find breached a legal duty to plaintiff and as to which you found such breach was a substantial factor in causing plaintiff's injury, you must determine the degree of fault of each.Once you have considered all the facts and circumstances, you will decide what percentage of fault each bears for causing the plaintiff's injury. In allocating fault, you will be asked to assess the relative culpability of each entity and, as to those entities you find liable, to what extent each one failed to meet its duty. In considering the relative culpability, you may consider the strengths of the proofs in the entire record, regardless of the party which introduced the evidence.The total of these percentages must add up to 100 | Comparative Fault—Apportionment of Fault Between Defendants (modified)As to each party or entity you find breached a legal duty to plaintiff and as to which you found such breach was a substantial factor in causing plaintiff's injury, you must determine the degree of fault of each.Once you have considered all the facts and circumstances, you will decide what percentage of fault each bears for causing the plaintiff's injury. In allocating fault, you will be asked to assess the relative culpability of each entity and, as to those entities you find liable, to what extent each one failed to meet its duty. In considering the relative culpability, you may consider the strengths of the proofs in the entire record, regardless of the party which introduced the evidence.The total of these percentages must add up to 100 |
| percent.29. . Damages—General30. . | percent.29. PJI 2:277. Damages—General30. PJI 2:280. |
| Damages—Personal Injury—Injury And Pain And Suffering(modified to add to the following:)You may take into consideration the effect that plaintiff's injuries have had on his ability to enjoy life. Loss of enjoyment of life includes the loss of ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of | Damages—Personal Injury—Injury And Pain And Suffering(modified to add to the following:)You may take into consideration the effect that plaintiff's injuries have had on his ability to enjoy life. Loss of enjoyment of life includes the loss of ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of |
| life.31. . | life.31. PJI 2:281. |
| Damages—Personal Injury—Future—Permanence (modified)If you fix damages for pain and suffering, you will determine damages in relation to any of the plaintiff's injuries or disabilities that you find to be permanent and for future pain, suffering and disability and the loss of his ability to enjoy life.Such damages shall be for a period of time you determine based upon plaintiff's life expectancy. You shall consider the evidence you have heard concerning the condition of plaintiff's health and relevant medical testimony in deciding plaintiff's present life expectancy.If you make an award for this item of future damages, you must state the period of time over which the amount awarded is intended to provide | Damages—Personal Injury—Future—Permanence (modified)If you fix damages for pain and suffering, you will determine damages in relation to any of the plaintiff's injuries or disabilities that you find to be permanent and for future pain, suffering and disability and the loss of his ability to enjoy life.Such damages shall be for a period of time you determine based upon plaintiff's life expectancy. You shall consider the evidence you have heard concerning the condition of plaintiff's health and relevant medical testimony in deciding plaintiff's present life expectancy.If you make an award for this item of future damages, you must state the period of time over which the amount awarded is intended to provide |
| compensation.32. . | compensation.32. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In | Damages—Personal Injury—Loss of Earnings—In |
| General33. . | General33. PJI 2:285. |
| Damages—Personal Injury—Expenses | Damages—Personal Injury—Expenses |
| Incurred34. . | Incurred34. PJI 2:301. |
| Damages—Personal Injury—Collateral Sources—Itemized Verdict (adapted)35. Recklessness (no directly correlating PJI)In this case plaintiff claims not only that Con Edison and LILCO also acted with reckless disregard for the safety of others. An entity acts with reckless disregard for the safely of others when it intentionally or with gross indifference to the rights or safety of others engages in conduct which makes it probable that injury will occur.This standard requires that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.Plaintiff has the burden of proving by a preponderance of the evidence that such defendants acted with reckless disregard for the safety of | Damages—Personal Injury—Collateral Sources—Itemized Verdict (adapted)35. Recklessness (no directly correlating PJI)In this case plaintiff claims not only that Con Edison and LILCO also acted with reckless disregard for the safety of others. An entity acts with reckless disregard for the safely of others when it intentionally or with gross indifference to the rights or safety of others engages in conduct which makes it probable that injury will occur.This standard requires that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.Plaintiff has the burden of proving by a preponderance of the evidence that such defendants acted with reckless disregard for the safety of |
| others.36. . | others.36. PJI 2:275.2. |
| Comparative Fault—Apportionment of Fault Between Defendants [Supplemental Instruction] (joint and several | Comparative Fault—Apportionment of Fault Between Defendants [Supplemental Instruction] (joint and several |
| liability)37. . Impartiality38. . | liability)37. PJI 1:36. Impartiality38. PJI 1:22. |
| Falsus in Uno (modified to use only the last sentence:)By the processes which I have described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept, and what weight you will give to | Falsus in Uno (modified to use only the last sentence:)By the processes which I have described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept, and what weight you will give to |
| it.39. . | it.39. PJI 1:24. |
| Return to Courtroom (modified to add “The foreperson should write the question on a piece of paper, date it, sign it, and then give it to the court | Return to Courtroom (modified to add “The foreperson should write the question on a piece of paper, date it, sign it, and then give it to the court |
| officer.”)40. . | officer.”)40. PJI 1:103. |
| General Instruction—Supplemental Charge—Note—Taking by Jurors(modified)Remember also, as I cautioned you, your notes are for your reference. If you have any question regarding the testimony, you should ask to have the testimony read back. If you do so, it would be of assistance if you could indicate the name of the witness and the subject matter of such testimony.41. 1:27. Exclude Sympathy (reiterated)42. 1:28. Conclusion (modified by adding the following:)While you are free to adopt any procedure you wish in relation to your deliberations, I do advise you that research on jury functioning indicates that jurors are most satisfied with their deliberative process when—taking any particular issue to be decided—each juror expresses his or her view in turn. Research indicates that using a procedure calling for a straw poll at the outset of consideration of each issue is reported to be a less satisfying procedure.Now, once I release you to deliberate, as long as six of you are in the jury room you can deliberate. If anyone leaves, deliberations should immediately cease.We have randomly selected six names. The alternates shall remain available for deliberation and I ask that you return to the courtroom after you claim your possessions from the jury room.C. Case Documents Available on Westlaw1.Appellate Opinion, | General Instruction—Supplemental Charge—Note—Taking by Jurors(modified)Remember also, as I cautioned you, your notes are for your reference. If you have any question regarding the testimony, you should ask to have the testimony read back. If you do so, it would be of assistance if you could indicate the name of the witness and the subject matter of such testimony.41. 1:27. Exclude Sympathy (reiterated)42. 1:28. Conclusion (modified by adding the following:)While you are free to adopt any procedure you wish in relation to your deliberations, I do advise you that research on jury functioning indicates that jurors are most satisfied with their deliberative process when—taking any particular issue to be decided—each juror expresses his or her view in turn. Research indicates that using a procedure calling for a straw poll at the outset of consideration of each issue is reported to be a less satisfying procedure.Now, once I release you to deliberate, as long as six of you are in the jury room you can deliberate. If anyone leaves, deliberations should immediately cease.We have randomly selected six names. The alternates shall remain available for deliberation and I ask that you return to the courtroom after you claim your possessions from the jury room.C. Case Documents Available on Westlaw1.Appellate Opinion, |
| , | In re New York City Asbestos Litigation, |
| — N.Y.S.2d —, | — N.Y.S.2d —, |
| 2007 WL 1815405 (N.Y.A.D. 1 Dept. 2007) |
| (unanimously affirming judgment for site owner on indemnification from contractor)Appellate Brief, 2006 WL 4591421Appellate Brief, 2006 WL 4591419Jury Instruction, | (unanimously affirming judgment for site owner on indemnification from contractor)Appellate Brief, 2006 WL 4591421Appellate Brief, 2006 WL 4591419Jury Instruction, |
| 2.Sample | 2003 WL 219947792.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: “asbestos /p injury”D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: “asbestos /p injury”D. Research References1.Key |
| Numbers , , | NumbersNegligence 1727, 1737, 1742Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:4 Construction | 7:355§ 9:4 Construction |
| Accident: personal injury, foot, one plaintiff, one defendant, one third-party defendantA. BackgroundType of Case: Construction AccidentType of Injury: Injuries to Achilles tendon of footCase Name: Warren Murphy v. Columbia University and Pavarini Construction v. Precision Specialist Metal & GlassCourt: Supreme Court of New YorkJudge: Paula J. OmanskyDocket Number: 121822/98Verdict Date: January 23, 2002Outcome: Award of $4,286,795Brief Summary of Facts: An ironworker employed by the third-party defendant was injured while working at the defendant university. The plaintiff tripped over debris while trying to extinguish a fire, alleged violations of industrial codes concerning welding, lighting, and debris. The defendants argued that the plaintiff was either wholly or partially responsible for the accident.B. Jury Instructions Proposed By | Accident: personal injury, foot, one plaintiff, one defendant, one third-party defendantA. BackgroundType of Case: Construction AccidentType of Injury: Injuries to Achilles tendon of footCase Name: Warren Murphy v. Columbia University and Pavarini Construction v. Precision Specialist Metal & GlassCourt: Supreme Court of New YorkJudge: Paula J. OmanskyDocket Number: 121822/98Verdict Date: January 23, 2002Outcome: Award of $4,286,795Brief Summary of Facts: An ironworker employed by the third-party defendant was injured while working at the defendant university. The plaintiff tripped over debris while trying to extinguish a fire, alleged violations of industrial codes concerning welding, lighting, and debris. The defendants argued that the plaintiff was either wholly or partially responsible for the accident.B. Jury Instructions Proposed By |
| Plaintiff1. . | Plaintiff1. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to | Injured Employee—Statutory Negligence—Safe Place to |
| Work2. . | Work2. PJI 2:216A. |
| Injured Employee—Violation of Industrial Rule—Vicarious Liability—Nondelegable Duty of Owner/Subcontractor—Labor Law § 241(6)To be modified by specifying particular violations of rules promulgated by the Commissioner of | Injured Employee—Violation of Industrial Rule—Vicarious Liability—Nondelegable Duty of Owner/Subcontractor—Labor Law § 241(6)To be modified by specifying particular violations of rules promulgated by the Commissioner of |
| Labor | Labor12 NYCRR 23.125 |
| Welding and flame cutting operations.(a) Compressed gas cylinders.. . .(3) Whenever welding or flame-cutting operations are performed in the vicinity of any combustible material there shall be provided, within easy reach of the persons performing such work, at least one approved fire extinguisher or fire pail filled with an appropriate fire extinguishing | Welding and flame cutting operations.(a) Compressed gas cylinders.. . .(3) Whenever welding or flame-cutting operations are performed in the vicinity of any combustible material there shall be provided, within easy reach of the persons performing such work, at least one approved fire extinguisher or fire pail filled with an appropriate fire extinguishing |
| agent. | agent.12 NYCRR 23-1.7 |
| Protection from general hazards.(e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being | Protection from general hazards.(e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being |
| performed. | performed.12 NYCRR 23-1.30 |
| Illumination. Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illuminations be less than 10 foot-candles in any area where persons are required to work nor less than five foot-candles in any passageway, stairway, landing or similar area where persons are required to | Illumination. Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illuminations be less than 10 foot-candles in any area where persons are required to work nor less than five foot-candles in any passageway, stairway, landing or similar area where persons are required to |
| pass.. | pass.12 NYCRR 23-2.1. |
| Maintenance and housekeeping.(a) Storage of material or equipment. (1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.(b) Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such | Maintenance and housekeeping.(a) Storage of material or equipment. (1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.(b) Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such |
| area.3. . | area.3. PJI 2:70. |
| Proximate Cause—In GeneralC. Case Documents Available on Westlaw1.Jury Instruction, 2002 WL 32906086Notice of Cross-Motion, 2002 WL 32904587Reply Affirmation, 2002 WL 32904589Affirmation in Opposition, 2002 WL 32904590Affirmation in Opposition, 2002 WL 32904591Affirmation in Opposition, 2002 WL 32904593Judgment, 2002 WL 32904594Affirmation, 2002 WL 32904585Verdict Sheet, 2002 WL 32955458Verdict and Settlement Summary, 2002 WL 481030Expert Trial Transcript, 2002 WL 32903699Verified Third Party Answer, 1999 WL 33966438Third-Party Defendant's Answer, 1999 WL 33966440Docket, 0121822/1998Verified Third Party Complaint, 1999 WL 33966439Verified Answer, 1999 WL 33966435Answer of Third-Party Defendant, 1998 WL 34355442Verified Complaint, 1998 WL 34355443Verdict, Agreement and Settlement, 1998 WL 34356385Expert Trial Transcript, | Proximate Cause—In GeneralC. Case Documents Available on Westlaw1.Jury Instruction, 2002 WL 32906086Notice of Cross-Motion, 2002 WL 32904587Reply Affirmation, 2002 WL 32904589Affirmation in Opposition, 2002 WL 32904590Affirmation in Opposition, 2002 WL 32904591Affirmation in Opposition, 2002 WL 32904593Judgment, 2002 WL 32904594Affirmation, 2002 WL 32904585Verdict Sheet, 2002 WL 32955458Verdict and Settlement Summary, 2002 WL 481030Expert Trial Transcript, 2002 WL 32903699Verified Third Party Answer, 1999 WL 33966438Third-Party Defendant's Answer, 1999 WL 33966440Docket, 0121822/1998Verified Third Party Complaint, 1999 WL 33966439Verified Answer, 1999 WL 33966435Answer of Third-Party Defendant, 1998 WL 34355442Verified Complaint, 1998 WL 34355443Verdict, Agreement and Settlement, 1998 WL 34356385Expert Trial Transcript, |
| 2.Sample | 1998 WL 343822792.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: trip fall fell /p injur! /p constructionD. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: trip fall fell /p injur! /p constructionD. Research References1.Key |
| Numbers , , | NumbersNegligence 1728, 1735, 1738Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:5 Construction | 7:355§ 9:5 Construction |
| Accident: personal injury, knee, one plaintiff, one defendantA. BackgroundType of Case: Construction Accident; slip and fallType of Injury: Injuries to medial meniscus and anterior cruciate ligament in kneeCase Name: Coleman v. Baker/Mellon Stuart Construction, Inc.Court: Supreme Court of New YorkJudge: Patrick H. NeMoyerDocket Number: 9601/98Verdict Date: January 13, 2003Outcome: Award of $167,600Brief Summary of Facts: The plaintiff alleged that while performing carpentry work, he slipped and fell after losing his footing while pushing a pallet on a wet floor. The defendant construction company adduced evidence that the plaintiff did not in fact slip on water. One year later, the plaintiff had surgery for a knee reconstruction, missing more than a year of work as a school teacherB. Jury Instructions Proposed By | Accident: personal injury, knee, one plaintiff, one defendantA. BackgroundType of Case: Construction Accident; slip and fallType of Injury: Injuries to medial meniscus and anterior cruciate ligament in kneeCase Name: Coleman v. Baker/Mellon Stuart Construction, Inc.Court: Supreme Court of New YorkJudge: Patrick H. NeMoyerDocket Number: 9601/98Verdict Date: January 13, 2003Outcome: Award of $167,600Brief Summary of Facts: The plaintiff alleged that while performing carpentry work, he slipped and fell after losing his footing while pushing a pallet on a wet floor. The defendant construction company adduced evidence that the plaintiff did not in fact slip on water. One year later, the plaintiff had surgery for a knee reconstruction, missing more than a year of work as a school teacherB. Jury Instructions Proposed By |
| Plaintiff1. . | Plaintiff1. PJI 1:90. |
| General Instructions—-Expert Witnesses (Dr. Keith Stube-Orthopedic Knee | General Instructions—-Expert Witnesses (Dr. Keith Stube-Orthopedic Knee |
| Surgeon)2. . | Surgeon)2. PJI 1:97. |
| Special Verdict (As Determined By | Special Verdict (As Determined By |
| Court)3. . | Court)3. PJI 2:16. |
| Common Law Standard of Care—Customary Business PracticesTo be modified to substitute Owner with “General Contractor”, the Defendant, BAKER/MELLON STUART CONSTRUCTION, INC. (To be modified by specifying particular violations of rules promulgated by the Commissioner of | Common Law Standard of Care—Customary Business PracticesTo be modified to substitute Owner with “General Contractor”, the Defendant, BAKER/MELLON STUART CONSTRUCTION, INC. (To be modified by specifying particular violations of rules promulgated by the Commissioner of |
| Labor | Labor12 NYCRR 23-1.7(d) |
| Protection in Construction. . .operations. Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe | Protection in Construction. . .operations. Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe |
| footing.4. . Damages—General5. . | footing.4. PJI 2:77. Damages—General5. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering6. . | Suffering6. PJI 2:280.1. |
| Loss of Enjoyment of | Loss of Enjoyment of |
| Life7. . | Life7. PJI 2:281. |
| Damages—Personal Injury—Permanence—Life Expectancy TablesTo be modified to include: Plaintiff's date of birth is XX/XX/1947; age 55 years, under Appendix A, Table 2, Life Tables for Males: United States 1997 (age 55 to 56), Plaintiff would have a life expectancy of 23.3 additional | Damages—Personal Injury—Permanence—Life Expectancy TablesTo be modified to include: Plaintiff's date of birth is XX/XX/1947; age 55 years, under Appendix A, Table 2, Life Tables for Males: United States 1997 (age 55 to 56), Plaintiff would have a life expectancy of 23.3 additional |
| years.8. . | years.8. PJI 2:284. |
| Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences | Damages—Personal Injury—Shock, Emotional Distress and Physical Consequences |
| Thereof9. . | Thereof9. PJI 2:285. |
| Damages—Personal Injury—Expenses IncurredTo be modified to include: Plaintiff has incurred, by Stipulation, medical expenses in the amount of $13,600.08.Life expectancy 23.3 additional years and work life expectancy under Appendix B, Table 1, Table of Working Life for Men, 1979–80, Current Labor Status, age 55, in labor force, of 8.7 additional years.Union carpenter work during summer months when not teaching with Buffalo Board of Education.C. Case Documents Available on Westlaw1.Jury Instruction, 2003 WL 24245044Verdict and Settlement Summary, 2003 WL 21430543Memorandum of Law, 2002 WL 32962956Answer, 1999 WL 33986338Complaint, | Damages—Personal Injury—Expenses IncurredTo be modified to include: Plaintiff has incurred, by Stipulation, medical expenses in the amount of $13,600.08.Life expectancy 23.3 additional years and work life expectancy under Appendix B, Table 1, Table of Working Life for Men, 1979–80, Current Labor Status, age 55, in labor force, of 8.7 additional years.Union carpenter work during summer months when not teaching with Buffalo Board of Education.C. Case Documents Available on Westlaw1.Jury Instruction, 2003 WL 24245044Verdict and Settlement Summary, 2003 WL 21430543Memorandum of Law, 2002 WL 32962956Answer, 1999 WL 33986338Complaint, |
| 2.Sample | 1998 WL 343672622.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: knee /p slip fall /p injur!D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: knee /p slip fall /p injur!D. Research References1.Key |
| Numbers , , , | NumbersNegligence 1728, 1732, 1735, 1738Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:6 Construction | 7:355§ 9:6 Construction |
| Accident: personal injury, back, neck, head, right ribs, and face, two plaintiffs, one defendantA. BackgroundType of Case: Construction Accident; fallType of Injury: Injuries to back, neck, head, right ribs, and face, including the nose.Case Name: James Grinnell and Bertha Grinnell v. City of New YorkCourt: Supreme Court of New YorkJudge: Robert LippmanDocket Number: 16481/92Verdict Date: March 11, 1996Outcome: Verdict for plaintiff of $305,000Brief Summary of Facts: The plaintiff was injured while working on a building project when a building collapsed and he fell down three floors, injuring his back, neck, head, right ribs, and face, including the nose. The defendant's defenses included assumption of risk.B. Jury Instructions1. Instructions Proposed By | Accident: personal injury, back, neck, head, right ribs, and face, two plaintiffs, one defendantA. BackgroundType of Case: Construction Accident; fallType of Injury: Injuries to back, neck, head, right ribs, and face, including the nose.Case Name: James Grinnell and Bertha Grinnell v. City of New YorkCourt: Supreme Court of New YorkJudge: Robert LippmanDocket Number: 16481/92Verdict Date: March 11, 1996Outcome: Verdict for plaintiff of $305,000Brief Summary of Facts: The plaintiff was injured while working on a building project when a building collapsed and he fell down three floors, injuring his back, neck, head, right ribs, and face, including the nose. The defendant's defenses included assumption of risk.B. Jury Instructions1. Instructions Proposed By |
| Plaintiff1. | Plaintiff1. PJI 2:217 |
| (Sup.). Injured Employee—Action Under Statute Imposing Absolute LiabilitySection 240 of the Labor Law requires all owners in the demolition of a building/structure to furnish or erect for the performance of such work scaffolding as to give proper protection to the person performing such work.Plaintiff was employed in the demolition of a building/structure. If defendant breached this statutory duty and such breach was a substantial factor in causing plaintiff's injuries, the statute imposes liability whether or not defendant was at fault and whether or not there was any fault on the part of plaintiff that contributed to the injury.If you find that there was not in place scaffolding so constructed, placed, operated and maintained as to give proper protection to plaintiff in the performance of the work, and that the construction, placement, operation, maintenance of the scaffolding was substantial factor in causing plaintiff's injury, you will find for plaintiff on this issue.If you find that the absence of scaffolding so constructed, placed, operated and maintained was not a substantial factor in causing plaintiff's injuries, you will find for the defendant on this | (Sup.). Injured Employee—Action Under Statute Imposing Absolute LiabilitySection 240 of the Labor Law requires all owners in the demolition of a building/structure to furnish or erect for the performance of such work scaffolding as to give proper protection to the person performing such work.Plaintiff was employed in the demolition of a building/structure. If defendant breached this statutory duty and such breach was a substantial factor in causing plaintiff's injuries, the statute imposes liability whether or not defendant was at fault and whether or not there was any fault on the part of plaintiff that contributed to the injury.If you find that there was not in place scaffolding so constructed, placed, operated and maintained as to give proper protection to plaintiff in the performance of the work, and that the construction, placement, operation, maintenance of the scaffolding was substantial factor in causing plaintiff's injury, you will find for plaintiff on this issue.If you find that the absence of scaffolding so constructed, placed, operated and maintained was not a substantial factor in causing plaintiff's injuries, you will find for the defendant on this |
| issue.2. | issue.2. PJI 2:216A |
| (Sup.). Injured Employee—Violation Of Industrial Rule—Vicarious Liability—Nondelegable Duty Of Owner/Subcontractor—Labor Law | (Sup.). Injured Employee—Violation Of Industrial Rule—Vicarious Liability—Nondelegable Duty Of Owner/Subcontractor—Labor Law |
| Plaintiff | Section 241(6)Plaintiff |
| claims that defendant, THE CITY OF NEW YORK, the owner of the site, is liable for his injuries under Section 241(6) of the New York State Labor Law. | claims that defendant, THE CITY OF NEW YORK, the owner of the site, is liable for his injuries under Section 241(6) of the New York State Labor Law. |
| Section 241(6) |
| requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein. . ..” The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims the following rules were violated.Rule 23-3.3(d) reads as follows:(b) Demolition of walls and partitions. (1). . .(2). . .(3) Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.(4) Employers shall not suffer or permit any person to work while such person is standing on top of a wall or any similar elevated structure of small area.(5) In the demolition by hand of exterior walls, all persons performing such work shall be provided with safe footing in the form of sound flooring or scaffolds constructed and installed in compliance with this Part (rule).(6) Walls or partitions which are being demolished by hand shall not be left standing more than one story or 15 feet, whichever is less, above the uppermost floor on which persons are working. Such walls or partitions shall be removed before the aggregate area of the openings in such floor exceeds 25 percent of the total floor area.(c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.Rule 23-3.3(j) reads as follows:(j) Floor openings. (1) Permissible aggregate area. During the demolition of any building or other structure by hand, the aggregate area of openings in the floor immediately beneath the floor being demolished shall not exceed 25 percent of the total area of such floor.(2) Required protection. (i) Every opening used for the removal of debris or materials on every floor not closed to access, except the top working floor, shall be provided with an enclosure from floor to ceiling equivalent to that afforded by planking not less than two inches thick full size. Such enclosure shall be solid except for portions openable for loosening blocked debris. Alternatively, the opening shall be fenced off by a substantial safety railing constructed and installed in compliance with this Part (rule) and placed not less than 20 feet from the perimeter of such opening. Every opening not used for the removal of debris or other materials in any floor to which access is permitted shall be protected by a solid enclosure as described above, by a substantial safety railing constructed and installed at least two feet from the perimeter of the opening and otherwise in compliance with this Part (rule) or such opening shall be solidly planked over with planks not less than two inches thick full size.(ii) Openings in the top or working floor more than 16 inches in least dimension shall be protected on all sides except the side at which debris or other materials is deposited, by a substantial safety railing constructed and installed at least two feet from the perimeter of the opening and otherwise in compliance with this Part (rule) or by a rope not less than five-eighths inch diameter or an equivalent chain placed not less than two fee from the perimeter of such opening. Such rope or chain shall be not less than 36 inches nor more than 42 inches above the floor surface. That portion of any floor opening adjacent to and immediately below a point where persons are employed in any work upon a wall or equivalent structure shall be provided with solid flooring not less than five feet in width measured from the inside face of such wall or equivalent structure. Such flooring shall consist of planking not less than two inches thick full size, exterior grade plywood not less than three-quarters inch thick or material of equivalent strength.Rule 23-3.3(l) reads as follows:(l) Safe footing required. Any person working above the first floor or ground level in the demolition of any building or other structure shall not be suffered or permitted to use accumulated debris or piled materials as a footing in the performance of his work. Every person shall be provided with safe footing consisting of sound flooring, planking not less than two inches thick full size, adequately supported exterior grade plywood at least three-quarters inch thick or other material of equivalent strength.Under Labor Law | requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein. . ..” The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims the following rules were violated.Rule 23-3.3(d) reads as follows:(b) Demolition of walls and partitions. (1). . .(2). . .(3) Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.(4) Employers shall not suffer or permit any person to work while such person is standing on top of a wall or any similar elevated structure of small area.(5) In the demolition by hand of exterior walls, all persons performing such work shall be provided with safe footing in the form of sound flooring or scaffolds constructed and installed in compliance with this Part (rule).(6) Walls or partitions which are being demolished by hand shall not be left standing more than one story or 15 feet, whichever is less, above the uppermost floor on which persons are working. Such walls or partitions shall be removed before the aggregate area of the openings in such floor exceeds 25 percent of the total floor area.(c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.Rule 23-3.3(j) reads as follows:(j) Floor openings. (1) Permissible aggregate area. During the demolition of any building or other structure by hand, the aggregate area of openings in the floor immediately beneath the floor being demolished shall not exceed 25 percent of the total area of such floor.(2) Required protection. (i) Every opening used for the removal of debris or materials on every floor not closed to access, except the top working floor, shall be provided with an enclosure from floor to ceiling equivalent to that afforded by planking not less than two inches thick full size. Such enclosure shall be solid except for portions openable for loosening blocked debris. Alternatively, the opening shall be fenced off by a substantial safety railing constructed and installed in compliance with this Part (rule) and placed not less than 20 feet from the perimeter of such opening. Every opening not used for the removal of debris or other materials in any floor to which access is permitted shall be protected by a solid enclosure as described above, by a substantial safety railing constructed and installed at least two feet from the perimeter of the opening and otherwise in compliance with this Part (rule) or such opening shall be solidly planked over with planks not less than two inches thick full size.(ii) Openings in the top or working floor more than 16 inches in least dimension shall be protected on all sides except the side at which debris or other materials is deposited, by a substantial safety railing constructed and installed at least two feet from the perimeter of the opening and otherwise in compliance with this Part (rule) or by a rope not less than five-eighths inch diameter or an equivalent chain placed not less than two fee from the perimeter of such opening. Such rope or chain shall be not less than 36 inches nor more than 42 inches above the floor surface. That portion of any floor opening adjacent to and immediately below a point where persons are employed in any work upon a wall or equivalent structure shall be provided with solid flooring not less than five feet in width measured from the inside face of such wall or equivalent structure. Such flooring shall consist of planking not less than two inches thick full size, exterior grade plywood not less than three-quarters inch thick or material of equivalent strength.Rule 23-3.3(l) reads as follows:(l) Safe footing required. Any person working above the first floor or ground level in the demolition of any building or other structure shall not be suffered or permitted to use accumulated debris or piled materials as a footing in the performance of his work. Every person shall be provided with safe footing consisting of sound flooring, planking not less than two inches thick full size, adequately supported exterior grade plywood at least three-quarters inch thick or other material of equivalent strength.Under Labor Law |
| , | Section 241(6), |
| the owner of an area where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of a general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping or guarding the site or in arranging, operating or conducting the work in that area. The owner is liable for an injury due to the failure of a general contractor or subcontractor to use reasonable care even though the owner did not control or supervise the area or the work being done there and did not or could not know of any danger to plaintiff.In this case, plaintiff claims that THE CITY OF NEW YORK, the owner, is liable to him for his injury because of the failure of Gateway Demolition Corporation to use reasonable care. The only evidence of Gateway Demolition Corporation's claimed failure to use reasonable care that you may consider in connection with the liability of THE CITY OF NEW YORK to plaintiff, is evidence relating to the claimed violation of Rule 23-3.3(d),(j),(l) by Gateway Demolition Corporation. Violation of any of theses rules by Gateway Demolition Corporation would constitute some evidence of Gateway Demolition Corporation's failure to use reasonable care. THE CITY OF NEW YORK denies that this Rule was violated or that Gateway Demolition Corporation failed to use reasonable care.In deciding whether THE CITY OF NEW YORK, the owner, is liable to plaintiff because of the claimed failure of Gateway Demolition Corporation to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule 23-3.3(d),(j),(l). If you find there was a violation of any of these Rules and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendant THE CITY OF NEW YORK (on this issue). If you find that Gateway Demolition Corporation did not violate any of these Rules or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for THE CITY OF NEW YORK (on this | the owner of an area where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of a general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping or guarding the site or in arranging, operating or conducting the work in that area. The owner is liable for an injury due to the failure of a general contractor or subcontractor to use reasonable care even though the owner did not control or supervise the area or the work being done there and did not or could not know of any danger to plaintiff.In this case, plaintiff claims that THE CITY OF NEW YORK, the owner, is liable to him for his injury because of the failure of Gateway Demolition Corporation to use reasonable care. The only evidence of Gateway Demolition Corporation's claimed failure to use reasonable care that you may consider in connection with the liability of THE CITY OF NEW YORK to plaintiff, is evidence relating to the claimed violation of Rule 23-3.3(d),(j),(l) by Gateway Demolition Corporation. Violation of any of theses rules by Gateway Demolition Corporation would constitute some evidence of Gateway Demolition Corporation's failure to use reasonable care. THE CITY OF NEW YORK denies that this Rule was violated or that Gateway Demolition Corporation failed to use reasonable care.In deciding whether THE CITY OF NEW YORK, the owner, is liable to plaintiff because of the claimed failure of Gateway Demolition Corporation to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule 23-3.3(d),(j),(l). If you find there was a violation of any of these Rules and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendant THE CITY OF NEW YORK (on this issue). If you find that Gateway Demolition Corporation did not violate any of these Rules or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for THE CITY OF NEW YORK (on this |
| issue).3. | issue).3. PJI 1:90 |
| (Sup.). General Instruction—Expert | (Sup.). General Instruction—Expert |
| Witness4. . | Witness4. PJI 1:92. |
| General Instruction—Interested Witness—Employee Of Party. . . as to Walter | General Instruction—Interested Witness—Employee Of Party. . . as to Walter |
| Woloszyn5. | Woloszyn5. PJI 2:277 |
| (Sup.). | (Sup.). |
| Damages—General6. | Damages—General6. PJI 2:280 |
| (Sup.). Damages—Personal Injury—Injury And Pain And | (Sup.). Damages—Personal Injury—Injury And Pain And |
| Suffering7. | Suffering7. PJI 2:280.1 |
| (Sup.). Loss Of Enjoyment Of | (Sup.). Loss Of Enjoyment Of |
| Life8. | Life8. PJI 2:281 |
| (Sup.). Damages—Personal Injury—Permanence—Life Expectancy Tables. . .can be expected to live for 16.6 more years. . .until age 80.8 | (Sup.). Damages—Personal Injury—Permanence—Life Expectancy Tables. . .can be expected to live for 16.6 more years. . .until age 80.8 |
| years9. . | years9. PJI 2:285. |
| Damages—Personal Injury—Expenses | Damages—Personal Injury—Expenses |
| Incurred10. . | Incurred10. PJI 2:290. |
| Damages—Personal Injury—Loss Of Earnings—In General. . .is now 60 years of age. . .work expectancy of 4.4 more years2. Instructions Proposed By | Damages—Personal Injury—Loss Of Earnings—In General. . .is now 60 years of age. . .work expectancy of 4.4 more years2. Instructions Proposed By |
| Defendant1. . | Defendant1. PJI 1:22. |
| Falsus in | Falsus in |
| Uno2. . | Uno2. PJI 1:23. |
| Burden of | Burden of |
| Proof3. . | Proof3. PJI 2:36. |
| Comparative Negligence Bifurcated Trial to be charged to indicate that apportionment of liability may be assessed to plaintiff should defendant be found liable under § 200 and | Comparative Negligence Bifurcated Trial to be charged to indicate that apportionment of liability may be assessed to plaintiff should defendant be found liable under § 200 and |
| 241(6) of the Labor Law of the State of New York |
| or common law | or common law |
| negligence.4. . | negligence.4. PJI 1:27. |
| Exclude | Exclude |
| Sympathy5. . Conclusion6. . | Sympathy5. PJI 1:28. Conclusion6. PJI 1:91. |
| Interested Witness to be charged as to | Interested Witness to be charged as to |
| plaintiff7. . | plaintiff7. PJI 1:92. |
| Interested Witness Employee of Defendant to be charged as to Walter | Interested Witness Employee of Defendant to be charged as to Walter |
| Woloszyn.8. . | Woloszyn.8. PJI 2:10. |
| Negligence | Negligence |
| Defined9. . | Defined9. PJI 2:55. |
| Assumption of Risk to be charged as to plaintiff's knowledge of the inherent risks associated with his chosen | Assumption of Risk to be charged as to plaintiff's knowledge of the inherent risks associated with his chosen |
| occupation.10. . | occupation.10. PJI 2:70. |
| Proximate Cause11. There can be no recovery for the plaintiff merely because the plaintiff may have sustained an accident without proof by a preponderance of the credible evidence that the defendant was negligent or violated a specific statute and that this negligence or violation of a statute was the proximate cause of the accident.12. There can be no recovery for the plaintiff merely because the plaintiff may have sustained an accident without proof by a preponderance of the credible evidence that the defendant was negligent or violated a specific statute and that this negligence or violation of a statute was the proximate cause of the injuries sustained13. The mere fact that an accident happened standing alone, does not permit the jury to draw the inference that the accident was caused by the defendant's negligence. Federal Jury Practice and Instructions, Devittn Blackmar Section 80.07.14. The mere fact that an accident happened standing alone, does not permit the jury to draw the inference that the accident was caused by the violation of any statute.15. The defendant can not be held liable to plaintiff under § 200 of the Labor Law of the State of New York for a defective or dangerous condition which arose from the employer's means and methods unless there is also a finding by the jury by a preponderance of the credible evidence that the defendant exercised supervisory control over the operation and that this violation was the proximate cause of the injuries sustained. Ross v. Curtis-Palmer Hydro Electric Co., 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993); Lombardi v. Stout, 80 N.Y.2d 290, 604 N.E.2d 117, 590 N.Y.S.2d 55 | Proximate Cause11. There can be no recovery for the plaintiff merely because the plaintiff may have sustained an accident without proof by a preponderance of the credible evidence that the defendant was negligent or violated a specific statute and that this negligence or violation of a statute was the proximate cause of the accident.12. There can be no recovery for the plaintiff merely because the plaintiff may have sustained an accident without proof by a preponderance of the credible evidence that the defendant was negligent or violated a specific statute and that this negligence or violation of a statute was the proximate cause of the injuries sustained13. The mere fact that an accident happened standing alone, does not permit the jury to draw the inference that the accident was caused by the defendant's negligence. Federal Jury Practice and Instructions, Devittn Blackmar Section 80.07.14. The mere fact that an accident happened standing alone, does not permit the jury to draw the inference that the accident was caused by the violation of any statute.15. The defendant can not be held liable to plaintiff under § 200 of the Labor Law of the State of New York for a defective or dangerous condition which arose from the employer's means and methods unless there is also a finding by the jury by a preponderance of the credible evidence that the defendant exercised supervisory control over the operation and that this violation was the proximate cause of the injuries sustained. Ross v. Curtis-Palmer Hydro Electric Co., 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993); Lombardi v. Stout, 80 N.Y.2d 290, 604 N.E.2d 117, 590 N.Y.S.2d 55 |
| (1992).16. . | (1992).16. PJI 2:217. |
| Injured Employee—Action Under Statute Imposing Absolute Liability to be charged with respect to the planking which was placed across the floor joists and used by plaintiff as footing.17. The defendant can not be held liable to plaintiff under § 240 of the Labor Law of the State of New York for any injuries sustained as a result of a wall falling on him. Misseritti v. Mark IV Const. Co., Inc., 86 N.Y.2d 487, 634 N.Y.S.2d 25 (1995); Decision of Hon. Marylin G. Diamond dated February 6, 1996 on plaintiffs' motion for summary judgment.18. The defendant can not be held liable to plaintiff under § 240 of the Labor Law of the State of New York for any injuries sustained as a result of a violation of this statute unless the jury finds by a preponderance of the credible evidence that the injuries sustained could only have been caused by a violation of this statute. Decision of Hon. Marylin G. Diamond dated February 6, 1996 on plaintiffs' motion for summary judgment.19. The defendant can not be held liable to plaintiff under § 241(6) of the Labor Law of the State of New York absent a finding that the defendant violated a specific standard of conduct imposed by the New York State Industrial Code as opposed to a general safety requirement and that this violation was the proximate cause of the injuries sustained. Ross v. Curtis-Palmer Hydro Electric Co., 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993).C. Case Documents Available on Westlaw1.Jury Instruction, 1996 WL 33690876Jury Instruction, 1996 WL 33690875Verdict, 1996 WL 33690872Docket, 0016481/1992Expert Trial Transcript, 1992 WL 12157654Expert Trial Transcript, 1992 WL 12157655Trial Order | Injured Employee—Action Under Statute Imposing Absolute Liability to be charged with respect to the planking which was placed across the floor joists and used by plaintiff as footing.17. The defendant can not be held liable to plaintiff under § 240 of the Labor Law of the State of New York for any injuries sustained as a result of a wall falling on him. Misseritti v. Mark IV Const. Co., Inc., 86 N.Y.2d 487, 634 N.Y.S.2d 25 (1995); Decision of Hon. Marylin G. Diamond dated February 6, 1996 on plaintiffs' motion for summary judgment.18. The defendant can not be held liable to plaintiff under § 240 of the Labor Law of the State of New York for any injuries sustained as a result of a violation of this statute unless the jury finds by a preponderance of the credible evidence that the injuries sustained could only have been caused by a violation of this statute. Decision of Hon. Marylin G. Diamond dated February 6, 1996 on plaintiffs' motion for summary judgment.19. The defendant can not be held liable to plaintiff under § 241(6) of the Labor Law of the State of New York absent a finding that the defendant violated a specific standard of conduct imposed by the New York State Industrial Code as opposed to a general safety requirement and that this violation was the proximate cause of the injuries sustained. Ross v. Curtis-Palmer Hydro Electric Co., 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993).C. Case Documents Available on Westlaw1.Jury Instruction, 1996 WL 33690876Jury Instruction, 1996 WL 33690875Verdict, 1996 WL 33690872Docket, 0016481/1992Expert Trial Transcript, 1992 WL 12157654Expert Trial Transcript, 1992 WL 12157655Trial Order |
| 2.Sample | 1996 WL 343875002.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: collapse! /s building /p injur!D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: collapse! /s building /p injur!D. Research References1.Key |
| Numbers , , , | NumbersNegligence 1728, 1732, 1735, 1738Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:7 Construction | 7:355§ 9:7 Construction |
| Accident: personal injury to back and neck, one plaintiff and two defendantsA. BackgroundType of Case: Construction Accident; back and neckType of Injury: Injuries to rotator cuff, as well aggravating two preexisting, asymptomatic conditions: spondylolisthesis at L4-5 and L5-S1 and spinal stenosis. Plaintiff had arthroscopic shoulder surgery and a posterior spinal fusion.Case Name: Susan Green, as Preliminary Executrix of the Estate of Walter Green, Deceased & Susan Green, Individually V. Shactel Construction Corp. & C. Williams Electrical Construction, Inc.Court: Supreme Court of New YorkJudge: Saralee E. EvansDocket Number: 121341/00Verdict Date: May 25, 2004Outcome: Settlement of $750,000Brief Summary of Facts: The plaintiff hired the defendants, a contractor and subcontractor, to renovate her New York apartment. The subcontractor installed several used ceiling fans that belonged to the plaintiff. The plaintiff contended that the electrical contractor negligently installed one of the fans, causing back and shoulder injuries, and that the construction company was vicariously liable as the project's general contractor. The plaintiff's husband dies before trial; his loss-of-consortium claim was continued by the plaintiff as the preliminary executrix of his estate.B. Jury Instructions Proposed By | Accident: personal injury to back and neck, one plaintiff and two defendantsA. BackgroundType of Case: Construction Accident; back and neckType of Injury: Injuries to rotator cuff, as well aggravating two preexisting, asymptomatic conditions: spondylolisthesis at L4-5 and L5-S1 and spinal stenosis. Plaintiff had arthroscopic shoulder surgery and a posterior spinal fusion.Case Name: Susan Green, as Preliminary Executrix of the Estate of Walter Green, Deceased & Susan Green, Individually V. Shactel Construction Corp. & C. Williams Electrical Construction, Inc.Court: Supreme Court of New YorkJudge: Saralee E. EvansDocket Number: 121341/00Verdict Date: May 25, 2004Outcome: Settlement of $750,000Brief Summary of Facts: The plaintiff hired the defendants, a contractor and subcontractor, to renovate her New York apartment. The subcontractor installed several used ceiling fans that belonged to the plaintiff. The plaintiff contended that the electrical contractor negligently installed one of the fans, causing back and shoulder injuries, and that the construction company was vicariously liable as the project's general contractor. The plaintiff's husband dies before trial; his loss-of-consortium claim was continued by the plaintiff as the preliminary executrix of his estate.B. Jury Instructions Proposed By |
| Plaintiff1. . | Plaintiff1. PJI 2:15. |
| Common Law Standard of Care—Defendant having special | Common Law Standard of Care—Defendant having special |
| knowledge2. . | knowledge2. PJI 2:65. |
| Res Ipsa | Res Ipsa |
| Loquitur3. . | Loquitur3. PJI 2:235. |
| Vicariou—Derivative Responsibility—Employer-Employee—Scope of | Vicariou—Derivative Responsibility—Employer-Employee—Scope of |
| Employment4. . Damages—General5. . | Employment4. PJI 2:277. Damages—General5. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering6. . | Suffering6. PJI 2:280.1. |
| Supplemental Change—Loss of Enjoyment of | Supplemental Change—Loss of Enjoyment of |
| Life7. . | Life7. PJI 2:280.2. |
| Supplemental Change—Income | Supplemental Change—Income |
| Taxes8. . | Taxes8. PJI 2:281. |
| Damages—Personal Injury—Permanence—Life Expectancy | Damages—Personal Injury—Permanence—Life Expectancy |
| Tables9. . | Tables9. PJI 2:282. |
| Damages—Personal Injury—Aggravation of Pre-existing | Damages—Personal Injury—Aggravation of Pre-existing |
| Injury10. . | Injury10. PJI 2:283. |
| Damages—Personal Injury—Increased Susceptibility To | Damages—Personal Injury—Increased Susceptibility To |
| Injury11. . | Injury11. PJI 2:285. |
| Damages—Personal Injury—Expenses | Damages—Personal Injury—Expenses |
| incurred12. . | incurred12. PJI 2:315. |
| Damages—Derivative Action Re Spouse—Loss of ServicesC. Case Documents Available on Westlaw1.Jury Instruction, 2004 WL 3552337Affirmation, | Damages—Derivative Action Re Spouse—Loss of ServicesC. Case Documents Available on Westlaw1.Jury Instruction, 2004 WL 3552337Affirmation, |
| Affirmation | 2004 WL 3483086Affirmation |
| in Support of Cross-Motion for Fees, 2004 WL 3552352Affirmation in Support of Cross-Motion for Fees, 2004 WL 3552353Verdict and Settlement Summary, 2004 WL 3093919Trial Order, 2004 WL 5284534Stipulation, 2004 WL 3483082Stipulation, 2004 WL 3483083Stipulation, 2003 WL 24137730Expert Report and Affidavit, 2002 WL 32903056Docket, 0121341/2000Report or Affidavit of Victor McLaughlin, M.D., 2001 WL 34818219Report or Affidavit of Andrei Carasca, M.D., 2000 WL 34546732Summons and Complaint, 2000 WL 34534589Verified Complaint, 2000 WL 34541932Verified Complaint, | in Support of Cross-Motion for Fees, 2004 WL 3552352Affirmation in Support of Cross-Motion for Fees, 2004 WL 3552353Verdict and Settlement Summary, 2004 WL 3093919Trial Order, 2004 WL 5284534Stipulation, 2004 WL 3483082Stipulation, 2004 WL 3483083Stipulation, 2003 WL 24137730Expert Report and Affidavit, 2002 WL 32903056Docket, 0121341/2000Report or Affidavit of Victor McLaughlin, M.D., 2001 WL 34818219Report or Affidavit of Andrei Carasca, M.D., 2000 WL 34546732Summons and Complaint, 2000 WL 34534589Verified Complaint, 2000 WL 34541932Verified Complaint, |
| 2.Sample | 2000 WL 345419312.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: back shoulder /p injury /s install!D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: back shoulder /p injury /s install!D. Research References1.Key |
| Numbers , | NumbersNegligence 1728, 1738Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:8 Construction | 7:355§ 9:8 Construction |
| Accident: personal injury to spinal cord, one plaintiff, one defendant and one third-party defendantA. BackgroundType of Case: Construction Accident; struck by falling materialType of Injury: Fractured vertebrae from T-7 through T-12; spinal cord injury with no paralysis; left-side hyperkyphosisCase Name: Joan Grabowski, Indiv. and as Exec. of the Estate. of Stanley Grabowski v. Rochester Insulated Glass, Inc v. Clayton B. Obersheimer, Inc., Third-Party Defendant.Court: Supreme Court of New YorkJudge: Thomas P. FlahertyDocket Number: 3957/94Verdict Date: November 18, 1998Outcome: Verdict for plaintiff of $3,805,000; defendant Rochester Insulated Glass 70%; Third-party defendant Obersheimer 30% negligent.Brief Summary of Facts: The decedent, a union glazier on a construction project, was killed after a crate fell off of a truck and struck him. The plaintiff claimed that the driver was negligent for refusing to offload the shipment, and that the cargo was top-heavy and improperly loaded. It was claimed in defense that the worker should not have cut the bands holding the material while the decedent was in the dangerous area, and that the worker could not have known the load was unbalanced in the absence of warnings to that effect.B. Jury Instructions1. Instructions Proposed By | Accident: personal injury to spinal cord, one plaintiff, one defendant and one third-party defendantA. BackgroundType of Case: Construction Accident; struck by falling materialType of Injury: Fractured vertebrae from T-7 through T-12; spinal cord injury with no paralysis; left-side hyperkyphosisCase Name: Joan Grabowski, Indiv. and as Exec. of the Estate. of Stanley Grabowski v. Rochester Insulated Glass, Inc v. Clayton B. Obersheimer, Inc., Third-Party Defendant.Court: Supreme Court of New YorkJudge: Thomas P. FlahertyDocket Number: 3957/94Verdict Date: November 18, 1998Outcome: Verdict for plaintiff of $3,805,000; defendant Rochester Insulated Glass 70%; Third-party defendant Obersheimer 30% negligent.Brief Summary of Facts: The decedent, a union glazier on a construction project, was killed after a crate fell off of a truck and struck him. The plaintiff claimed that the driver was negligent for refusing to offload the shipment, and that the cargo was top-heavy and improperly loaded. It was claimed in defense that the worker should not have cut the bands holding the material while the decedent was in the dangerous area, and that the worker could not have known the load was unbalanced in the absence of warnings to that effect.B. Jury Instructions1. Instructions Proposed By |
| Plaintiff1. . | Plaintiff1. PJI 1:22. |
| Falsus in | Falsus in |
| Uno2. . | Uno2. PJI 1:70. |
| General Instruction-Circumstantial | General Instruction-Circumstantial |
| Evidence3. . | Evidence3. PJI 1:90. |
| General Instruction-Expert | General Instruction-Expert |
| Witness4. . | Witness4. PJI 1:92. |
| General Instruction—Interested Witness—Employee of | General Instruction—Interested Witness—Employee of |
| Party5. . | Party5. PJI 2:10. |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined—Generally6. . | Defined—Generally6. PJI 2:12. |
| Common Law Standard of | Common Law Standard of |
| Care-Foreseeability—Generally7. . | Care-Foreseeability—Generally7. PJI 2:15. |
| Common Law Standard of Care—Defendant Having Special Knowledge (to be modified to reflect glass contractor skills and training)A person who has special training and experience in a trade, when acting in the trade or profession on behalf of others who are relying on his special skills, has the duty to use the same degree of skill and care that others in the same trade in the community would reasonably use in the same situation. ROCHESTER INSULATED GLASS, INC., the defendant in this case, has special skills in the trade of loading, securing, transporting and unloading plate glass for use in construction projects. If you decide that defendant did use the same degree of skill and care that others in the plate glass transportation trade in the community would reasonably use in the same situation, then you must find that defendant was not negligent. On the other hand, if you decide that defendant did not use the same degree of skill and care, then you must find that defendant was | Common Law Standard of Care—Defendant Having Special Knowledge (to be modified to reflect glass contractor skills and training)A person who has special training and experience in a trade, when acting in the trade or profession on behalf of others who are relying on his special skills, has the duty to use the same degree of skill and care that others in the same trade in the community would reasonably use in the same situation. ROCHESTER INSULATED GLASS, INC., the defendant in this case, has special skills in the trade of loading, securing, transporting and unloading plate glass for use in construction projects. If you decide that defendant did use the same degree of skill and care that others in the plate glass transportation trade in the community would reasonably use in the same situation, then you must find that defendant was not negligent. On the other hand, if you decide that defendant did not use the same degree of skill and care, then you must find that defendant was |
| negligent.8. . | negligent.8. PJI 2:16. |
| Common Law Standard of Care—Customary Business | Common Law Standard of Care—Customary Business |
| Practices9. . | Practices9. PJI 2:70. |
| Proximate Cause—In | Proximate Cause—In |
| General10. . | General10. PJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to Work (to be modified to reflect Section 200 of the Labor Law)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”A contractor owes a duty to workers to use reasonable care to make the workplaces that are under the control of the contractor, reasonably safe. The contractor who exercises control is required to correct an unsafe condition that is known to the contractor or to any of the contractor's employees. The contractor who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The contractor is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the contractor or its employees should have known of its existence and corrected it, or which the contractor's employees themselves created.Plaintiff claims that the workplace was unsafe in that the dangerous condition posed by the improper, unstable loading of the crate of glass which struck Mr. Grabowski, and the general misloading of the flat-bed trailer, which led to the fall of the glass crate, was created because of defendant's negligence. Defendant denies this claim. In deciding this issue, you will first consider whether the workplace was unsafe and, if so, whether the unsafe condition resulted from defendant's failure to use reasonable care to provide a safe workplace initially, or from defendant's failure to use reasonable care to correct the condition after defendant or its employee knew or in the use of reasonable care should have known of the condition.If you decide that the workplace was not unsafe or that an unsafe condition did not result from any failure of defendant to use reasonable care in making or keeping it safe, then you will find for the defendant on this issue.If you decide that the workplace was unsafe and that the unsafe condition resulted from the failure of defendant to exercise reasonable care in making it or keeping it safe, and such failure was a substantial factor in causing plaintiff's injury, you will find for plaintiff on this | Injured Employee—Statutory Negligence—Safe Place to Work (to be modified to reflect Section 200 of the Labor Law)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”A contractor owes a duty to workers to use reasonable care to make the workplaces that are under the control of the contractor, reasonably safe. The contractor who exercises control is required to correct an unsafe condition that is known to the contractor or to any of the contractor's employees. The contractor who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The contractor is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the contractor or its employees should have known of its existence and corrected it, or which the contractor's employees themselves created.Plaintiff claims that the workplace was unsafe in that the dangerous condition posed by the improper, unstable loading of the crate of glass which struck Mr. Grabowski, and the general misloading of the flat-bed trailer, which led to the fall of the glass crate, was created because of defendant's negligence. Defendant denies this claim. In deciding this issue, you will first consider whether the workplace was unsafe and, if so, whether the unsafe condition resulted from defendant's failure to use reasonable care to provide a safe workplace initially, or from defendant's failure to use reasonable care to correct the condition after defendant or its employee knew or in the use of reasonable care should have known of the condition.If you decide that the workplace was not unsafe or that an unsafe condition did not result from any failure of defendant to use reasonable care in making or keeping it safe, then you will find for the defendant on this issue.If you decide that the workplace was unsafe and that the unsafe condition resulted from the failure of defendant to exercise reasonable care in making it or keeping it safe, and such failure was a substantial factor in causing plaintiff's injury, you will find for plaintiff on this |
| issue.11. . | issue.11. PJI 2:280. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering12. . | Suffering12. PJI 2:280.1. |
| Damages—Personal Injury—Injury and Pain and | Damages—Personal Injury—Injury and Pain and |
| Suffering13. . | Suffering13. PJI 2:285. |
| Damages—Personal Injury—Expenses Incurred (as modified)Plaintiff JOAN GRABOWSKI is entitled to recover the amount of reasonable expenditures for medical services and medicines, including physician's charges, nursing charges, hospital expenses, diagnostic expenses and X-ray charges incurred by her decedent, Mr. Grabowski. If you decide for plaintiff on the question of liability, you will include in your verdict the amount that the parties have stipulated are the medical expenses necessarily incurred as a result of Mr. Grabowski's injuries, that figure being | Damages—Personal Injury—Expenses Incurred (as modified)Plaintiff JOAN GRABOWSKI is entitled to recover the amount of reasonable expenditures for medical services and medicines, including physician's charges, nursing charges, hospital expenses, diagnostic expenses and X-ray charges incurred by her decedent, Mr. Grabowski. If you decide for plaintiff on the question of liability, you will include in your verdict the amount that the parties have stipulated are the medical expenses necessarily incurred as a result of Mr. Grabowski's injuries, that figure being |
| $86,943.00.14. . | $86,943.00.14. PJI 2:290. |
| Damages—Personal Injury—Loss of Earnings—In | Damages—Personal Injury—Loss of Earnings—In |
| General15. . | General15. PJI 2:315. |
| Damages—Derivative Action Re Spouse—Loss of Services2. Instructions Proposed By Third-Party | Damages—Derivative Action Re Spouse—Loss of Services2. Instructions Proposed By Third-Party |
| Defendant1. . Introduction.2. . | Defendant1. PJI 1:20. Introduction.2. PJI 1:21. |
| Review Principles | Review Principles |
| Stated.3. . | Stated.3. PJI 1:22. |
| Falso in | Falso in |
| Uno.4. . | Uno.4. PJI 1:23. |
| Burden of Proof (with added sentence that, with respect to the third-party complaint brought by Rochester Insulated Glass against Clayton Obersheimer, the same burden of proof rule applies to the issues that the defendant Rochester Insulated Glass, as third-party plaintiff, is required to | Burden of Proof (with added sentence that, with respect to the third-party complaint brought by Rochester Insulated Glass against Clayton Obersheimer, the same burden of proof rule applies to the issues that the defendant Rochester Insulated Glass, as third-party plaintiff, is required to |
| prove.)5. . | prove.)5. PJI 1:24. |
| Return to the | Return to the |
| Courtroom.6. . | Courtroom.6. PJI 1:25. |
| Consider only Testimony and | Consider only Testimony and |
| Exhibits.7. . | Exhibits.7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict.8. . | Verdict.8. PJI 1:26B. |
| Special | Special |
| Verdict.9. . | Verdict.9. PJI 1:27. |
| Exclude | Exclude |
| Sympathy.10. . Conclusion.11. . | Sympathy.10. PJI 1:28. Conclusion.11. PJI 1:29. |
| Alternate | Alternate |
| Jurors.12. . | Jurors.12. PJI 1:90. |
| General Instruction—Expert | General Instruction—Expert |
| Witness.13. . | Witness.13. PJI 1:97. |
| General Instruction—Special Verdict.C. Case Documents Available on Westlaw1.Main Action Verdict Sheet, 1998 WL 34367510Third Party Action Verdict Sheet, 1998 WL 34367511Jury Instruction, 1998 WL 34367512Jury Instruction, 1998 WL 34367513Verdict and Settlement Summary, 1998 WL 2015716Trial Memorandum, 1998 WL 34367264Third-Party Answer, 1995 WL 17220823Third Party Complaint, 1994 WL 16197275Docket, 0003957/1994Verified Answer, | General Instruction—Special Verdict.C. Case Documents Available on Westlaw1.Main Action Verdict Sheet, 1998 WL 34367510Third Party Action Verdict Sheet, 1998 WL 34367511Jury Instruction, 1998 WL 34367512Jury Instruction, 1998 WL 34367513Verdict and Settlement Summary, 1998 WL 2015716Trial Memorandum, 1998 WL 34367264Third-Party Answer, 1995 WL 17220823Third Party Complaint, 1994 WL 16197275Docket, 0003957/1994Verified Answer, |
| 2.Sample | 1994 WL 161972742.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: truck autom! car vehicle /s balance! tip tipp! stable /p injuryD. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: truck autom! car vehicle /s balance! tip tipp! stable /p injuryD. Research References1.Key |
| Numbers , , , | NumbersNegligence 1728, 1732, 1735, 1738Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:9 Construction | 7:355§ 9:9 Construction |
| Accident: personal injury to back, one plaintiff, one defendant and one third-party defendantA. BackgroundType of Case: Construction Accident; products liability for tools/equipment/machineryType of Injury: back injury, herniated discCase Name: Lyndon P. Sharrow, Plaintiff, v. Dick Corporation and Southern Steel Corporation, Defendants.Dick Corporation and Southern Steel Corporation, Defendants/Third Party Plaintiffs, v. G & H Steel Service, Inc., Third Party DefendantsCourt: Supreme Court of New YorkJudge: Norman E. JoslinDocket Number: 5186/1991Verdict Date: March 4, 1993Outcome: Verdict for plaintiff of $430,000Brief Summary of Facts: The plaintiff slipped forward while carrying a three hundred fifty pound lock box on a construction site, causing a herniated disc in his back. He claimed that the hoist being used to move the device was modified in a manner making it unsuitable for the job. The plaintiff's contention was that the defendant violated Labor Law | Accident: personal injury to back, one plaintiff, one defendant and one third-party defendantA. BackgroundType of Case: Construction Accident; products liability for tools/equipment/machineryType of Injury: back injury, herniated discCase Name: Lyndon P. Sharrow, Plaintiff, v. Dick Corporation and Southern Steel Corporation, Defendants.Dick Corporation and Southern Steel Corporation, Defendants/Third Party Plaintiffs, v. G & H Steel Service, Inc., Third Party DefendantsCourt: Supreme Court of New YorkJudge: Norman E. JoslinDocket Number: 5186/1991Verdict Date: March 4, 1993Outcome: Verdict for plaintiff of $430,000Brief Summary of Facts: The plaintiff slipped forward while carrying a three hundred fifty pound lock box on a construction site, causing a herniated disc in his back. He claimed that the hoist being used to move the device was modified in a manner making it unsuitable for the job. The plaintiff's contention was that the defendant violated Labor Law |
| section 241(6) |
| by failing to correct an unsafe condition that should have been discovered and corrected, by using unsafe equipment, and allowing an unsafe method of conducting the work.B. Jury Instructions1. Instructions Proposed By Plaintiff—Supplemental Request to | by failing to correct an unsafe condition that should have been discovered and corrected, by using unsafe equipment, and allowing an unsafe method of conducting the work.B. Jury Instructions1. Instructions Proposed By Plaintiff—Supplemental Request to |
| Charge1. . | Charge1. PJI 1:75. |
| Failure To Produce A Witness (to be modified to reflect specific circumstance of former employees, in conformity with ruling in R.T. Cornell Pharmacy, Inc. v. Guzzo, 135 AD2d 1000, 522 NYS2d 725 (3rd Dept. 1987).a) As to defendant, DICK CORPORATION—failure to produce Mr. James Moore.b) As to defendant, SOUTHERN STEEL CORP.—failure to produce Robert T. Gueringer and Norman Webbinmayer.c) As to third-party defendant, G & H STEEL SERVICE, INC., failure to produce Norman Webbinmayer and job foreman, Al Woznicki.d) As to all defendants—failure to produce Dr. Marin and Dr. Kumar, the physicians who examined the plaintiff on behalf of the defendants.2. Instructions Proposed By Third-Party | Failure To Produce A Witness (to be modified to reflect specific circumstance of former employees, in conformity with ruling in R.T. Cornell Pharmacy, Inc. v. Guzzo, 135 AD2d 1000, 522 NYS2d 725 (3rd Dept. 1987).a) As to defendant, DICK CORPORATION—failure to produce Mr. James Moore.b) As to defendant, SOUTHERN STEEL CORP.—failure to produce Robert T. Gueringer and Norman Webbinmayer.c) As to third-party defendant, G & H STEEL SERVICE, INC., failure to produce Norman Webbinmayer and job foreman, Al Woznicki.d) As to all defendants—failure to produce Dr. Marin and Dr. Kumar, the physicians who examined the plaintiff on behalf of the defendants.2. Instructions Proposed By Third-Party |
| Defendant1. . | Defendant1. PJI 1:22. |
| Falsus in | Falsus in |
| Uno2. . | Uno2. PJI 1:23. |
| Burden of | Burden of |
| Proof3. . | Proof3. PJI 1:27. |
| Exclude | Exclude |
| Sympathy4. . | Sympathy4. PJI 1:75. |
| Failure to Produce Witness—Plaintiff's Treating PhysiciansAuthor's Comment: The Comment to | Failure to Produce Witness—Plaintiff's Treating PhysiciansAuthor's Comment: The Comment to |
| PJI 1:75 |
| explains, that “[t]here are three preconditions for the missing witness charge. First, the witness's knowledge must be material to the trial. Second, the witness must be expected to give non-cumulative testimony favorable to the party against whom the charge is sought. This has been referred to as the ‘control’ element, which requires the court to evaluate the relationship between the witness and the party to whom the witness is expected to be faithful. Third, the witness must be available to that party.” 1A | explains, that “[t]here are three preconditions for the missing witness charge. First, the witness's knowledge must be material to the trial. Second, the witness must be expected to give non-cumulative testimony favorable to the party against whom the charge is sought. This has been referred to as the ‘control’ element, which requires the court to evaluate the relationship between the witness and the party to whom the witness is expected to be faithful. Third, the witness must be available to that party.” 1A |
| , | NY PJI3d 1:75, |
| at 116 to 125 (2018) (citations | at 116 to 125 (2018) (citations |
| omitted).5. . | omitted).5. PJI 1:90. |
| Expert Witnesses—Dr. William Capicotta and Eugene | Expert Witnesses—Dr. William Capicotta and Eugene |
| Penzimer6. . | Penzimer6. PJI 1:91. |
| Interested Witness—Plaintiff | Interested Witness—Plaintiff |
| Only7. . | Only7. PJI 2:10. |
| Negligence | Negligence |
| Defined8. . | Defined8. PJI 2:12. |
| ForeseeabilityAuthor's Comment: It is up to the court to determine in the first instance whether foreseeability is a matter of law or a jury issue. 1A | ForeseeabilityAuthor's Comment: It is up to the court to determine in the first instance whether foreseeability is a matter of law or a jury issue. 1A |
| , | NY PJI3d 2:12, |
| at 264 to 266 (2018) (citations | at 264 to 266 (2018) (citations |
| omitted).9. . | omitted).9. PJI 2:70. |
| Proximate | Proximate |
| Cause10. | Cause10. PJI 2:36 |
| (Sup). Comparative | (Sup). Comparative |
| Negligence11. . | Negligence11. PJI 2:216A. |
| Injured Employee—Labor Law § 241(6)Plaintiff claims that Dick Corporation and Southern Steel failed to use reasonable care by failing to correct an unsafe condition that should have been discovered and corrected, by using unsafe equipment, and allowing an unsafe method of conducting the work. Defendants Dick Corporation and Southern Steel would be liable under § 241(6) if you find that either Dick Corporation or Southern Steel failed to use reasonable care and that such failure was a substantial factor in causing plaintiff's injury. On the other hand, Dick Corporation and Southern Steel are not liable under § 241(6) if the contractors or subcontractor, G & H Steel Service, did not fail to use reasonable care or that, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injury.12. PJI 277. | Injured Employee—Labor Law § 241(6)Plaintiff claims that Dick Corporation and Southern Steel failed to use reasonable care by failing to correct an unsafe condition that should have been discovered and corrected, by using unsafe equipment, and allowing an unsafe method of conducting the work. Defendants Dick Corporation and Southern Steel would be liable under § 241(6) if you find that either Dick Corporation or Southern Steel failed to use reasonable care and that such failure was a substantial factor in causing plaintiff's injury. On the other hand, Dick Corporation and Southern Steel are not liable under § 241(6) if the contractors or subcontractor, G & H Steel Service, did not fail to use reasonable care or that, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injury.12. PJI 277. |
| Damages13. . | Damages13. PJI 2:280. |
| Pain and | Pain and |
| Suffering14. . | Suffering14. PJI 2:325. |
| Failure to Participate in Physical Therapy Program (to be modified)A person who has been injured is not permitted to recover for damages that he could have avoided by using means which a reasonably prudent person would have used to cure his injury or alleviate his pain. The defendants contend that if the plaintiff had participated in the six-month program of physical therapy recommended by Dr. Capicotta, his injury could be completely cured or his pain greatly alleviated. If you find for plaintiff, then in determining the nature of his injury and what damages he may recover for the injury, you must decide whether in refusing to participate in the physical therapy program the plaintiff acted as a reasonably prudent person would under the circumstances.In deciding that question you will take into consideration so much of the evidence introduced by both sides as you credit concerning the nature of the physical therapy, and the result to be expected from it. If you find that, in making the determination not to participate in the physical therapy program, plaintiff acted as a reasonably prudent person would to cure himself, then he is entitled to recover for his injuries, as you find them to be, without regard to the physical therapy. If, however, you find that the physical therapy is one that a reasonable prudent person would submit to and that the physical therapy would either cure the injury or relieve the pain, you will take that fact into consideration in arriving at the amount of damages, if any, that you award.Author's Comment: | Failure to Participate in Physical Therapy Program (to be modified)A person who has been injured is not permitted to recover for damages that he could have avoided by using means which a reasonably prudent person would have used to cure his injury or alleviate his pain. The defendants contend that if the plaintiff had participated in the six-month program of physical therapy recommended by Dr. Capicotta, his injury could be completely cured or his pain greatly alleviated. If you find for plaintiff, then in determining the nature of his injury and what damages he may recover for the injury, you must decide whether in refusing to participate in the physical therapy program the plaintiff acted as a reasonably prudent person would under the circumstances.In deciding that question you will take into consideration so much of the evidence introduced by both sides as you credit concerning the nature of the physical therapy, and the result to be expected from it. If you find that, in making the determination not to participate in the physical therapy program, plaintiff acted as a reasonably prudent person would to cure himself, then he is entitled to recover for his injuries, as you find them to be, without regard to the physical therapy. If, however, you find that the physical therapy is one that a reasonable prudent person would submit to and that the physical therapy would either cure the injury or relieve the pain, you will take that fact into consideration in arriving at the amount of damages, if any, that you award.Author's Comment: |
| , | PJI 2:325, |
| reflecting the general duty of a plaintiff to mitigate damages (See 1B | reflecting the general duty of a plaintiff to mitigate damages (See 1B |
| , | NY PJI3d 2:325, |
| at 1032 (2018)), is one of many pattern charges that are expressly based on the facts specific to a case. The pattern charge itself refers to failure to have an operation and so would have to be customized to fit the particular alleged failure to mitigate.C. Case Documents Available on Westlaw1.Jury Instruction, 1993 WL 13159184Jury Instruction, 1993 WL 13159185Verdict Sheet, 2002 WL 32994442Notice of Appeal, 1994 WL 16198210Supplemental Request to Charge, 1993 WL 13159185Affidavit of John Grant in Opposition to Motion of Defendant and Third-Party Plaintiff Dick Corporation, 1993 WL 13158919Transcript, 1991 WL 11262452Transcript, 1991 WL 11565613Docket, 0005186/19912.Sample Westlaw Query For Trial Court Documents in Similar Cases: slip! /s unsafe dangerous /p injur!D. Research References1.Key | at 1032 (2018)), is one of many pattern charges that are expressly based on the facts specific to a case. The pattern charge itself refers to failure to have an operation and so would have to be customized to fit the particular alleged failure to mitigate.C. Case Documents Available on Westlaw1.Jury Instruction, 1993 WL 13159184Jury Instruction, 1993 WL 13159185Verdict Sheet, 2002 WL 32994442Notice of Appeal, 1994 WL 16198210Supplemental Request to Charge, 1993 WL 13159185Affidavit of John Grant in Opposition to Motion of Defendant and Third-Party Plaintiff Dick Corporation, 1993 WL 13158919Transcript, 1991 WL 11262452Transcript, 1991 WL 11565613Docket, 0005186/19912.Sample Westlaw Query For Trial Court Documents in Similar Cases: slip! /s unsafe dangerous /p injur!D. Research References1.Key |
| Numbers , , , | NumbersNegligence 1728, 1732, 1735, 1738Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 9:10 Construction | 7:355§ 9:10 Construction |
| Accident; personal injury, incomplete paraplegia, spinal cord, and various other injuries; two plaintiffs, one defendant, one third-party defendantA. BackgroundType of Case: Construction AccidentType of Injury: Incomplete paraplegia from spinal cord injuryCase Name: Bissell v. Town of AmherstCourt: Supreme Court of New York, Erie CountyJudge: Paula A. FeroletoDocket Number: 5861/02Verdict Date: May, 2007Outcome: Verdict for plaintiff of $30,365,347Brief Summary of Facts: A 39-year-old male roofing contractor suffered incomplete paraplegia from a spinal cord injury, vertebrae and tibia fractures, bladder and bowel incontinence, sexual dysfunction, and a hernia when he fell over 14 feet from a ladder as he worked on the roof of the defendant's building. The plaintiff contended that the defendant failed to provide the proper safety equipment, failed to repair a defective ladder, and failed to ensure a safe workplace. Plaintiff's spouse sued for loss of services. The defendant denied liability and contended that the plaintiff deviated from the type of work that he was hired to perform, and that he failed to use due care for his own safety. Defendant town impleaded roofing company as third party defendant, seeking indemnification and contribution alleging that the company's actions caused plaintiff's injury. The trial was bifurcated. After verdict was rendered for the plaintiff, court denied third party defendant's motion to dismiss third-party complaint based on affirmative defense that the third-party action was barred by Workers' Compensation Law § 11 because plaintiff did not sustain a grave injury, and this order was affirmed on appeal.B. Jury InstructionsAuthor's Comment: The trial was bifurcated. The charge requests and actual instructions shown below pertain only to the liability phase of the trial. The liability trial was apparently limited to the single issue of whether the plaintiff was engaged in cleaning or repairing the structure at issue.1. Pre-trial Instructions Given by the | Accident; personal injury, incomplete paraplegia, spinal cord, and various other injuries; two plaintiffs, one defendant, one third-party defendantA. BackgroundType of Case: Construction AccidentType of Injury: Incomplete paraplegia from spinal cord injuryCase Name: Bissell v. Town of AmherstCourt: Supreme Court of New York, Erie CountyJudge: Paula A. FeroletoDocket Number: 5861/02Verdict Date: May, 2007Outcome: Verdict for plaintiff of $30,365,347Brief Summary of Facts: A 39-year-old male roofing contractor suffered incomplete paraplegia from a spinal cord injury, vertebrae and tibia fractures, bladder and bowel incontinence, sexual dysfunction, and a hernia when he fell over 14 feet from a ladder as he worked on the roof of the defendant's building. The plaintiff contended that the defendant failed to provide the proper safety equipment, failed to repair a defective ladder, and failed to ensure a safe workplace. Plaintiff's spouse sued for loss of services. The defendant denied liability and contended that the plaintiff deviated from the type of work that he was hired to perform, and that he failed to use due care for his own safety. Defendant town impleaded roofing company as third party defendant, seeking indemnification and contribution alleging that the company's actions caused plaintiff's injury. The trial was bifurcated. After verdict was rendered for the plaintiff, court denied third party defendant's motion to dismiss third-party complaint based on affirmative defense that the third-party action was barred by Workers' Compensation Law § 11 because plaintiff did not sustain a grave injury, and this order was affirmed on appeal.B. Jury InstructionsAuthor's Comment: The trial was bifurcated. The charge requests and actual instructions shown below pertain only to the liability phase of the trial. The liability trial was apparently limited to the single issue of whether the plaintiff was engaged in cleaning or repairing the structure at issue.1. Pre-trial Instructions Given by the |
| Court1. . | Court1. PJI 1:1. |
| Introduction to | Introduction to |
| Jury2. . | Jury2. PJI 1:2. |
| Parties [includes third-party | Parties [includes third-party |
| defendant]3. . | defendant]3. PJI 1:2A. |
| Split Trial — Liability (Transcript page 4, modified to cover specific factual question): In this case the only question you will decide is whether at the time of his fall the plaintiff Peter Bissell was on the premises to assist in repairing the roof or on the premises to prepare an estimate for repairing the roof. There will be no testimony or mention of any injury and should any person mention injuries or medical treatment, I direct you to disregard it. In addition, the issues in the lawsuit between the defendant Town of Amherst and McGonigle and Hilger will not be for your | Split Trial — Liability (Transcript page 4, modified to cover specific factual question): In this case the only question you will decide is whether at the time of his fall the plaintiff Peter Bissell was on the premises to assist in repairing the roof or on the premises to prepare an estimate for repairing the roof. There will be no testimony or mention of any injury and should any person mention injuries or medical treatment, I direct you to disregard it. In addition, the issues in the lawsuit between the defendant Town of Amherst and McGonigle and Hilger will not be for your |
| determination.4. . | determination.4. PJI 1:3. |
| Openings and | Openings and |
| Evidence5. . | Evidence5. PJI 1:94. |
| General Instruction — Use of Pre-Trial Deposition Upon Trial (Transcript pages 5 to 6, first sentence modified for use in pre-trial context):You may hear the lawyers read portions of a document referred to as an examination before trial of the plaintiff, of the defendant or other | General Instruction — Use of Pre-Trial Deposition Upon Trial (Transcript pages 5 to 6, first sentence modified for use in pre-trial context):You may hear the lawyers read portions of a document referred to as an examination before trial of the plaintiff, of the defendant or other |
| witnesses.6. . | witnesses.6. PJI 1:4. |
| Objections, Motions, | Objections, Motions, |
| Exceptions7. . Summations8. . | Exceptions7. PJI 1:5. Summations8. PJI 1:6. |
| Function of Court and | Function of Court and |
| Jury9. . | Jury9. PJI 1:7. |
| Consider Only Competent | Consider Only Competent |
| Evidenc10. . | Evidenc10. PJI 1:8. |
| Weighing | Weighing |
| Testimony11. . | Testimony11. PJI 1:9. |
| Conduct During | Conduct During |
| Recess12. . | Recess12. PJI 1:10. |
| Do Not Visit | Do Not Visit |
| Scene13. . | Scene13. PJI 1:11. |
| Discussion With Others — Independent Research (Transcript page 12, modified by omission of second sentence instructing jurors not to try to do any independent | Discussion With Others — Independent Research (Transcript page 12, modified by omission of second sentence instructing jurors not to try to do any independent |
| research):14. . | research):14. PJI 1:12. |
| Discussion by | Discussion by |
| Others15. . | Others15. PJI 1:13. |
| Conversation With Parties or | Conversation With Parties or |
| Attorneys16. . | Attorneys16. PJI 1:13A. |
| Alternate | Alternate |
| Jurors17. . | Jurors17. PJI 1:14. |
| Conclusion[Continues with court schedule and logistics]2. Defendant's Request to ChargeThe requests herein are taken directly from pattern jury instructions. If a modification is requested from the pattern charge, the entire charge as modified will be set | Conclusion[Continues with court schedule and logistics]2. Defendant's Request to ChargeThe requests herein are taken directly from pattern jury instructions. If a modification is requested from the pattern charge, the entire charge as modified will be set |
| forth:1. Introduction2. | forth:1. PJI 1:20 Introduction2. PJI 1:21 |
| Review Principle | Review Principle |
| Stated3. | Stated3. PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4. PJI 1:23 |
| Burden of | Burden of |
| Proof5. | Proof5. PJI 1:24 |
| Return to | Return to |
| Courtroom6. | Courtroom6. PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits7. | Exhibits7. PJI 1:25A |
| Juror's Use of Professional | Juror's Use of Professional |
| Expertise8. | Expertise8. PJI 1:26 |
| Five Sixths | Five Sixths |
| Verdict10. | Verdict10. PJI 1:27 |
| Exclude | Exclude |
| Sympathy11. | Sympathy11. PJI 1:90 |
| Expert | Expert |
| Witness12. | Witness12. PJI 1:91 |
| Interested | Interested |
| Witness13. | Witness13. PJI 2:217 |
| Action Under Statute Imposing Absolute Liability Modified to Read as Follows:Section 240 of the Labor Law requires all owners in the erection, repairing, altering or cleaning of a building or structure to furnish or erect for the performance of such work ladders which shall be so placed and maintained as to give proper protection to the person performing such work.Plaintiff claims that he was engaged in repairing of the roof of a building at 400 Mill Street owned by the Town of Amherst at the time of this incident.In order for the Plaintiff to be protected under this Section you must find that at the time of his injury he was actually engaged in repairing or cleaning this building. If you find that the plaintiff was actually engaged in repairing or cleaning this building then you will find for the plaintiff on this issue. If you find that at the time of this incident the plaintiff was not actually engaged in repairing or cleaning this building, then you must return a verdict in favor of the Town of Amherst on this issue absolving it from all responsibility.If the plaintiff was engaged in repairing or cleaning the roof of this building at the time of this incident, and his fall from the ladder was the result of the failure of the Town of Amherst to furnish or erect for the performance of such work a ladder which was so constructed as to provide proper protection to the plaintiff, then you will find for the plaintiff on the issue of whether the Town of Amherst violated Section 240 of the Labor Law.If you find that at the time of the plaintiff's injuries that he was not actually engaged in repairing or cleaning the roof of the building at 400 Mill Street or that the ladder was constructed as to provide proper protection to the plaintiff, then you must find that the Town of Amherst did not breach its statutory duty and is not liable to the plaintiff for his injuries.In order for the Town of Amherst to be responsible, you must find that the breach of the duty owed to the plaintiff was a substantial factor in causing his injuries. The statute imposes liability whether or not the defendant was at fault and whether or not there was any fault in the part of the plaintiff that contributed to the injury.If you find that the ladder being used by the plaintiff was so constructed, placed and maintained as to give proper protection to the plaintiff you will find for the defendant in this issue. If you find that the ladder was not so constructed, placed or maintained to give proper protection to the plaintiff and at the time he was actually engaged in repairing or cleaning the roof of the building at 400 Mill Street, you will find, and that such action was a substantial factor in causing injury, you will find for the plaintiff on this issue. If you conclude that the plaintiff's action was the only substantial factor in bringing about the injury, you will find for the Town of Amherst on this | Action Under Statute Imposing Absolute Liability Modified to Read as Follows:Section 240 of the Labor Law requires all owners in the erection, repairing, altering or cleaning of a building or structure to furnish or erect for the performance of such work ladders which shall be so placed and maintained as to give proper protection to the person performing such work.Plaintiff claims that he was engaged in repairing of the roof of a building at 400 Mill Street owned by the Town of Amherst at the time of this incident.In order for the Plaintiff to be protected under this Section you must find that at the time of his injury he was actually engaged in repairing or cleaning this building. If you find that the plaintiff was actually engaged in repairing or cleaning this building then you will find for the plaintiff on this issue. If you find that at the time of this incident the plaintiff was not actually engaged in repairing or cleaning this building, then you must return a verdict in favor of the Town of Amherst on this issue absolving it from all responsibility.If the plaintiff was engaged in repairing or cleaning the roof of this building at the time of this incident, and his fall from the ladder was the result of the failure of the Town of Amherst to furnish or erect for the performance of such work a ladder which was so constructed as to provide proper protection to the plaintiff, then you will find for the plaintiff on the issue of whether the Town of Amherst violated Section 240 of the Labor Law.If you find that at the time of the plaintiff's injuries that he was not actually engaged in repairing or cleaning the roof of the building at 400 Mill Street or that the ladder was constructed as to provide proper protection to the plaintiff, then you must find that the Town of Amherst did not breach its statutory duty and is not liable to the plaintiff for his injuries.In order for the Town of Amherst to be responsible, you must find that the breach of the duty owed to the plaintiff was a substantial factor in causing his injuries. The statute imposes liability whether or not the defendant was at fault and whether or not there was any fault in the part of the plaintiff that contributed to the injury.If you find that the ladder being used by the plaintiff was so constructed, placed and maintained as to give proper protection to the plaintiff you will find for the defendant in this issue. If you find that the ladder was not so constructed, placed or maintained to give proper protection to the plaintiff and at the time he was actually engaged in repairing or cleaning the roof of the building at 400 Mill Street, you will find, and that such action was a substantial factor in causing injury, you will find for the plaintiff on this issue. If you conclude that the plaintiff's action was the only substantial factor in bringing about the injury, you will find for the Town of Amherst on this |
| issue.14. | issue.14. PJI 2:17.1 |
| — Recalcitrant Worker Modified as Follows:One issue for you to decide in this case is whether the plaintiff at the time of this accident was a recalcitrant worker. Recalcitrant means disobedient. In order to establish the plaintiff was a recalcitrant worker, the Town of Amherst has the burden of proof to show: 1.) that the ladder provided to the plaintiff was adequate and safe and 2.) that the plaintiff after receiving timely specific instructions that he was to remain on the floor at the bottom of the ladder, deliberately failed to do so. Deliberately means intentionally. It does not mean negligently or carelessly. A deliberate refusal to follow an instruction can be implied from the plaintiff's conduct, but it cannot be implied merely because of the presence of the equipment. The Town of Amherst does not have to prove that there was continued insistence that the plaintiff remain on the floor if you find that a timely specific instruction to do so was given.IT IS ALSO REQUESTED THAT THE FOLLOWING CHARGE BE GIVEN IN SUM SUBSTANCE:Plaintiff claims that at the time of his injury he was an employee of McGonigle & Hilger and that his employer had been called to the site of his incident to make repairs to the roof. The Town of Amherst maintains that at the time of the plaintiff's incident his employer had been requested to send an estimator to determine whether there was a leak in the roof and to present an estimate of the repairs, so that at the time of the plaintiff's incident there was no contract or agreement to repair the roof existing between the Town of Amherst and the plaintiffs employer. In order for the plaintiff to hold the Town of Amherst responsible for his injuries in addition to your determining that at the time of the incident the plaintiff was actually engaged in repairing or cleaning the roof, you must first determine that at the time of this incident there existed between the plaintiff's employer McGonigle & Hilger and the Town of Amherst a contract for the repair of the roof. If you find that at the time of the incident there was a contract between McGonigle & Hilger, the plaintiff's employer and the Town of Amherst to make repairs or clean the roof, then you will find for the plaintiff on this issue. If however you find that at the time of the incident no contract existed between the plaintiff's employer and the Town of Amherst to repair the roof but that all it was a request to estimate a roof leak if in fact there was a roof leak, then you must find for the Town of Amherst on this issue.3. Defendant's Supplemental Request to Charge:The Question to be answered by the Jury is whether at the time of the incident the plaintiff was engaged in repair or whether he was engaged in helping to prepare an estimate.It is believed the testimony will establish that no actual repair work was being performed at the time of the plaintiff's incident. The plaintiff's supervisor Michael Blezniak and co-worker Neil Groff had not yet reached the roof of the premises to perform an inspection to determine whether in fact there was a leak in the roof that needed repair. If a leak was discovered, an estimated cost of that repair would be done.It is not important what the plaintiff believes he was there to do; nor is it important as to what Michael Blezniak believes was going to occur if he found a leak in the roof. The liability or obligation of the Town of Amherst must be determined by the activity that was going on at the time of the plaintiff's fall. Therefore, it is requested that the Jury be instructed as follows:In order for you to determine that the plaintiff Peter Bissell was engaged in a repair at the time of this fall, you must first determine that the plaintiff has established by a preponderance of the of the credible evidence that Peter Bissell was engaged in an actual repair to the roof. (taken from Panek v. County of Albany, 99 N.Y.2d 452, 758 N.Y.S.2d 267, 788 N.E.2d 616 (2003)).If you determine that the only work that would have been performed by the plaintiff's employer, had the Town of Amherst approved any estimate, was the cleaning of gutters and downspouts, then you must find that the plaintiff would not have been involved in a repair that is defined under the statute. Although, had the plaintiff commenced cleaning the gutters and downspouts as cleaning is defined under the statute, I instruct you that the term “cleaning”, as used in Section 240 of the Labor Law of the State of New York, references only cleaning incidental to building construction, demolition and repair work. You must therefore find for the defendant Town of Amherst on this question. (See Beavers v. Hanafin, 88 A.D.2d 683, 450 N.Y.S.2d 905 (3d Dep't 1982); Bundy v. Grant, 29 A.D.2d 1017, 289 N.Y.S.2d 428 (3d Dep't 1968); Connors v. Boorstein, 4 N.Y.2d 172, 173 N.Y.S.2d 288, 149 N.E.2d 721 (1958)).The term cleaning, as used in Section 240 of the Labor Law, does not include routine cleaning in non-construction, non-renovation context. (See Williams v. Perkins Restaurants, Inc., 245 A.D.2d 1128, 667 N.Y.S.2d 567 (4th Dep't 1997)).In that regard I therefore instruct you that the plaintiff must establish, by a preponderance of the credible evidence that his employer had been hired to repair a leak in the roof in order for you to find the defendant Town of Amherst responsible, and in order for you to answer “yes” to the question of whether the plaintiff was in the act of a repair at the time of the incident.If of course you determine that at the time of the incident, the plaintiff was only there to aid in preparing an estimate, then you must answer the first question “no”, that the plaintiff was not in the act of repairing at the time of the incident.The provisions of Labor Law | — Recalcitrant Worker Modified as Follows:One issue for you to decide in this case is whether the plaintiff at the time of this accident was a recalcitrant worker. Recalcitrant means disobedient. In order to establish the plaintiff was a recalcitrant worker, the Town of Amherst has the burden of proof to show: 1.) that the ladder provided to the plaintiff was adequate and safe and 2.) that the plaintiff after receiving timely specific instructions that he was to remain on the floor at the bottom of the ladder, deliberately failed to do so. Deliberately means intentionally. It does not mean negligently or carelessly. A deliberate refusal to follow an instruction can be implied from the plaintiff's conduct, but it cannot be implied merely because of the presence of the equipment. The Town of Amherst does not have to prove that there was continued insistence that the plaintiff remain on the floor if you find that a timely specific instruction to do so was given.IT IS ALSO REQUESTED THAT THE FOLLOWING CHARGE BE GIVEN IN SUM SUBSTANCE:Plaintiff claims that at the time of his injury he was an employee of McGonigle & Hilger and that his employer had been called to the site of his incident to make repairs to the roof. The Town of Amherst maintains that at the time of the plaintiff's incident his employer had been requested to send an estimator to determine whether there was a leak in the roof and to present an estimate of the repairs, so that at the time of the plaintiff's incident there was no contract or agreement to repair the roof existing between the Town of Amherst and the plaintiffs employer. In order for the plaintiff to hold the Town of Amherst responsible for his injuries in addition to your determining that at the time of the incident the plaintiff was actually engaged in repairing or cleaning the roof, you must first determine that at the time of this incident there existed between the plaintiff's employer McGonigle & Hilger and the Town of Amherst a contract for the repair of the roof. If you find that at the time of the incident there was a contract between McGonigle & Hilger, the plaintiff's employer and the Town of Amherst to make repairs or clean the roof, then you will find for the plaintiff on this issue. If however you find that at the time of the incident no contract existed between the plaintiff's employer and the Town of Amherst to repair the roof but that all it was a request to estimate a roof leak if in fact there was a roof leak, then you must find for the Town of Amherst on this issue.3. Defendant's Supplemental Request to Charge:The Question to be answered by the Jury is whether at the time of the incident the plaintiff was engaged in repair or whether he was engaged in helping to prepare an estimate.It is believed the testimony will establish that no actual repair work was being performed at the time of the plaintiff's incident. The plaintiff's supervisor Michael Blezniak and co-worker Neil Groff had not yet reached the roof of the premises to perform an inspection to determine whether in fact there was a leak in the roof that needed repair. If a leak was discovered, an estimated cost of that repair would be done.It is not important what the plaintiff believes he was there to do; nor is it important as to what Michael Blezniak believes was going to occur if he found a leak in the roof. The liability or obligation of the Town of Amherst must be determined by the activity that was going on at the time of the plaintiff's fall. Therefore, it is requested that the Jury be instructed as follows:In order for you to determine that the plaintiff Peter Bissell was engaged in a repair at the time of this fall, you must first determine that the plaintiff has established by a preponderance of the of the credible evidence that Peter Bissell was engaged in an actual repair to the roof. (taken from Panek v. County of Albany, 99 N.Y.2d 452, 758 N.Y.S.2d 267, 788 N.E.2d 616 (2003)).If you determine that the only work that would have been performed by the plaintiff's employer, had the Town of Amherst approved any estimate, was the cleaning of gutters and downspouts, then you must find that the plaintiff would not have been involved in a repair that is defined under the statute. Although, had the plaintiff commenced cleaning the gutters and downspouts as cleaning is defined under the statute, I instruct you that the term “cleaning”, as used in Section 240 of the Labor Law of the State of New York, references only cleaning incidental to building construction, demolition and repair work. You must therefore find for the defendant Town of Amherst on this question. (See Beavers v. Hanafin, 88 A.D.2d 683, 450 N.Y.S.2d 905 (3d Dep't 1982); Bundy v. Grant, 29 A.D.2d 1017, 289 N.Y.S.2d 428 (3d Dep't 1968); Connors v. Boorstein, 4 N.Y.2d 172, 173 N.Y.S.2d 288, 149 N.E.2d 721 (1958)).The term cleaning, as used in Section 240 of the Labor Law, does not include routine cleaning in non-construction, non-renovation context. (See Williams v. Perkins Restaurants, Inc., 245 A.D.2d 1128, 667 N.Y.S.2d 567 (4th Dep't 1997)).In that regard I therefore instruct you that the plaintiff must establish, by a preponderance of the credible evidence that his employer had been hired to repair a leak in the roof in order for you to find the defendant Town of Amherst responsible, and in order for you to answer “yes” to the question of whether the plaintiff was in the act of a repair at the time of the incident.If of course you determine that at the time of the incident, the plaintiff was only there to aid in preparing an estimate, then you must answer the first question “no”, that the plaintiff was not in the act of repairing at the time of the incident.The provisions of Labor Law |
| Section 240 |
| do not apply to routine maintenance in a non construction, non renovation setting. If you find that only a gutter or drain was plugged then the activities were not the repair of a roof and therefore plaintiff was not injured during the repair of a roof and you must first the defendant.See Koch v. E.C.H. Holding Corp., 248 A.D.2d 510, 669 N.Y.S.2d 896 (2d Dep't 1998); Jehle v. Adams Hotel Associates, 264 A.D.2d 354, 695 N.Y.S.2d 22 (1st Dep't 1999); Howe v. 1660 Grand Island Blvd., Inc., 209 A.D.2d 934, 619 N.Y.S.2d 227 (4th Dep't 1994).4. Post-Trial Jury Instructions Given By The | do not apply to routine maintenance in a non construction, non renovation setting. If you find that only a gutter or drain was plugged then the activities were not the repair of a roof and therefore plaintiff was not injured during the repair of a roof and you must first the defendant.See Koch v. E.C.H. Holding Corp., 248 A.D.2d 510, 669 N.Y.S.2d 896 (2d Dep't 1998); Jehle v. Adams Hotel Associates, 264 A.D.2d 354, 695 N.Y.S.2d 22 (1st Dep't 1999); Howe v. 1660 Grand Island Blvd., Inc., 209 A.D.2d 934, 619 N.Y.S.2d 227 (4th Dep't 1994).4. Post-Trial Jury Instructions Given By The |
| Court1. . | Court1. PJI 1:21. |
| Review Principles | Review Principles |
| Stated2. . | Stated2. PJI 1:22. |
| Falsus in | Falsus in |
| Uno3. . | Uno3. PJI 1:23. |
| Burden of | Burden of |
| Proof4. . | Proof4. PJI 1:24. |
| Return to | Return to |
| Courtroom5. . | Courtroom5. PJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. . | Exhibits6. PJI 1:26. |
| Five-Sixth | Five-Sixth |
| Verdict7. . | Verdict7. PJI 1:27. |
| Exclude | Exclude |
| Sympathy8. . | Sympathy8. PJI 1:70. |
| General Instruction — Circumstantial | General Instruction — Circumstantial |
| Evidence9. . | Evidence9. PJI 1:91. |
| General Instruction — Interested Witness — | General Instruction — Interested Witness — |
| Generally10. . | Generally10. PJI 1:92. |
| General Instruction — Interested Witness — Employee of | General Instruction — Interested Witness — Employee of |
| Party11. . | Party11. PJI 2:217. |
| Injured Employee — Action Under Statute Imposing Absolute Liability (modified, Transcript at pages 565 to 566, as follows:)The plaintiff's claim is based on New York State Labor Law section 240. In order for the plaintiff to be protected under Labor Law | Injured Employee — Action Under Statute Imposing Absolute Liability (modified, Transcript at pages 565 to 566, as follows:)The plaintiff's claim is based on New York State Labor Law section 240. In order for the plaintiff to be protected under Labor Law |
| , | section 240, |
| you must find that at the time of his injury, he was engaged in repairing or cleaning the building or structure at issue. In deciding whether the plaintiff was engaged in repair work or cleaning at the time of his injury, you should consider several factors, including whether the plaintiff was employed by a company that was hired to perform repair work; the type of work the plaintiff was performing at the time of his injury; whether the plaintiff was assisting his employer in repairing a roof or assisting his employer in estimating the project; whether the work was routine maintenance rather than repair work; whether the plaintiff's work was ongoing and contemporaneous with that work; whether the plaintiff himself was involved in performing repair work; or whether the plaintiff's work was part of a separate phase easily distinguishable from the repair work. Labor Law | you must find that at the time of his injury, he was engaged in repairing or cleaning the building or structure at issue. In deciding whether the plaintiff was engaged in repair work or cleaning at the time of his injury, you should consider several factors, including whether the plaintiff was employed by a company that was hired to perform repair work; the type of work the plaintiff was performing at the time of his injury; whether the plaintiff was assisting his employer in repairing a roof or assisting his employer in estimating the project; whether the work was routine maintenance rather than repair work; whether the plaintiff's work was ongoing and contemporaneous with that work; whether the plaintiff himself was involved in performing repair work; or whether the plaintiff's work was part of a separate phase easily distinguishable from the repair work. Labor Law |
| section 240 |
| does not apply to workers engaged in routine maintenance or cleaning that is not incidental to building construction, demolition, or repair work.If you find that at the time of his injury the plaintiff was engaged in repair or cleaning incidental to repair of the building, then you will find for the plaintiff on this issue. If you find that at the time of his injury the plaintiff was not engaged in repair or cleaning incidental to repair of the building, then you will find for the Town of Amherst on this | does not apply to workers engaged in routine maintenance or cleaning that is not incidental to building construction, demolition, or repair work.If you find that at the time of his injury the plaintiff was engaged in repair or cleaning incidental to repair of the building, then you will find for the plaintiff on this issue. If you find that at the time of his injury the plaintiff was not engaged in repair or cleaning incidental to repair of the building, then you will find for the Town of Amherst on this |
| issue.12. . | issue.12. PJI 1:97. |
| General Instruction — Special Verdicts (modified, Transcript at pages 566 to 567, as follows:)This case will be decided on the basis of the answer that you give to a question that will be submitted to you. The question asked calls for a yes or no answer. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to the question. When five of you have agreed on the answer, the foreperson of the jury will write the answer in the space provided for the answer and each juror will sign to indicate his or her agreement. When you have answered the question on the verdict sheet, report to the Court. Do not assume from the question or from the wording of the question or from my instructions on them what the answer should | General Instruction — Special Verdicts (modified, Transcript at pages 566 to 567, as follows:)This case will be decided on the basis of the answer that you give to a question that will be submitted to you. The question asked calls for a yes or no answer. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to the question. When five of you have agreed on the answer, the foreperson of the jury will write the answer in the space provided for the answer and each juror will sign to indicate his or her agreement. When you have answered the question on the verdict sheet, report to the Court. Do not assume from the question or from the wording of the question or from my instructions on them what the answer should |
| be.13. . Conclusion14. . | be.13. PJI 1:28. Conclusion14. PJI 1:29. |
| Alternate jurors (modified by adding the following, at Transcript page 569:)I also want to let you know that you are welcome to stay and sit in the audience if you are interested in — if you want to know what happens. Or you are free to go home, once again, with the thanks of the Court. At this point, I am going to — but before we let the alternates go, I'm going to excuse the jury for a few minutes before you start your deliberations to have a brief conversation with counsel.C. Case Documents Available on Westlaw1. Case and Verdict Summary, | Alternate jurors (modified by adding the following, at Transcript page 569:)I also want to let you know that you are welcome to stay and sit in the audience if you are interested in — if you want to know what happens. Or you are free to go home, once again, with the thanks of the Court. At this point, I am going to — but before we let the alternates go, I'm going to excuse the jury for a few minutes before you start your deliberations to have a brief conversation with counsel.C. Case Documents Available on Westlaw1. Case and Verdict Summary, |
| Defendant's | 2007 WL 2350486Defendant's |
| Request to Charge, | Request to Charge, |
| Defendant's | 2005 WL 5713315Defendant's |
| Supplemental Request to Charge, 2005 WL 5713314Appellate Decision, Bissell v. Town of Amherst, 41 A.D.3d 1228, 837 N.Y.S.2d 469 (4th Dept. 2007)Appellate Decision, Bissell v. Town of Amherst, 6 A.D.3d 1229, 775 N.Y.S.2d 730 (4th Dept. 2004)Appellate Decision, Bissell v. Town of Amherst, 6 A.D.3d 1230, 775 N.Y.S.2d 731 (4th Dept. 2004)Decision of Court, Bissell v. Town of Amherst, 13 Misc. 3d 1216(A), 824 N.Y.S.2d 752 (Sup 2005), | Supplemental Request to Charge, 2005 WL 5713314Appellate Decision, Bissell v. Town of Amherst, 41 A.D.3d 1228, 837 N.Y.S.2d 469 (4th Dept. 2007)Appellate Decision, Bissell v. Town of Amherst, 6 A.D.3d 1229, 775 N.Y.S.2d 730 (4th Dept. 2004)Appellate Decision, Bissell v. Town of Amherst, 6 A.D.3d 1230, 775 N.Y.S.2d 731 (4th Dept. 2004)Decision of Court, Bissell v. Town of Amherst, 13 Misc. 3d 1216(A), 824 N.Y.S.2d 752 (Sup 2005), |
| , | order aff'd, |
| 32 A.D.3d 1287, 821 N.Y.S.2d 527 (4th Dep't 2006)Trial Motion, Memorandum and Affidavit — Attorney's Affirmation in Opposition to Defendant's Post-Trial Motion to Set Aside Jury Verdict, | 32 A.D.3d 1287, 821 N.Y.S.2d 527 (4th Dep't 2006)Trial Motion, Memorandum and Affidavit — Attorney's Affirmation in Opposition to Defendant's Post-Trial Motion to Set Aside Jury Verdict, |
| Verdict, | 2005 WL 5713255Verdict, |
| Agreement and Settlement — Special Verdict | Agreement and Settlement — Special Verdict |
| Form,Trial | Form,2005 WL 5712654Trial |
| Motion, Memorandum and Affidavit — Attorney's Affirmation In Opposition to Defendant's Cross-motion to Reargue and Renew, | Motion, Memorandum and Affidavit — Attorney's Affirmation In Opposition to Defendant's Cross-motion to Reargue and Renew, |
| Trial | 2003 WL 25663408Trial |
| Motion, Memorandum and Affidavit — Attorney's Affirmation in Support of Plaintiffs' Motion to Reargue/Renew, 2003 WL 25663406Trial Motion, Memorandum and Affidavit — Attorney's Affirmation In Further Support of Plaintiffs' Motion for Partial Summary Judgment and In Opposition to Defendant's Motion for Summary Judgment, | Motion, Memorandum and Affidavit — Attorney's Affirmation in Support of Plaintiffs' Motion to Reargue/Renew, 2003 WL 25663406Trial Motion, Memorandum and Affidavit — Attorney's Affirmation In Further Support of Plaintiffs' Motion for Partial Summary Judgment and In Opposition to Defendant's Motion for Summary Judgment, |
| Trial | 2002 WL 34353318Trial |
| Motion, Memorandum and Affidavit — Attorney's Affirmation In Support of Plaintiffs' Motion for Partial Summary Judgment, | Motion, Memorandum and Affidavit — Attorney's Affirmation In Support of Plaintiffs' Motion for Partial Summary Judgment, |
| Verdict, | 2002 WL 34353316Verdict, |
| Agreement and Settlement, 2002 WL 34245279 (N.Y.Sup.)Jury Instruction, | Agreement and Settlement, 2002 WL 34245279 (N.Y.Sup.)Jury Instruction, |
| Jury | 2002 WL 34245534Jury |
| Instruction, | Instruction, |
| Trial | 2002 WL 34245535Trial |
| Pleading — Verified Answer to Amended Verified Complaint, | Pleading — Verified Answer to Amended Verified Complaint, |
| Trial | 2002 WL 34245523Trial |
| Pleading — Amended Verified Complaint 2002 WL 342455222. Sample Westlaw Query for Trial Court Documents in Similar Cases: 240 & roof & ladderD. Research References1.Key | Pleading — Amended Verified Complaint 2002 WL 342455222. Sample Westlaw Query for Trial Court Documents in Similar Cases: 240 & roof & ladderD. Research References1.Key |
| Numbers | NumbersTrial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Workers' CompensationWorkers' Compensation GuideWorkers' Compensation—Employer's Intentional Misconduct, 48 Am. Jur. Proof of Facts 2d 1Obtaining Workers' Compensation for Back Injuries, 79 Am. Jur. Trials 2314.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 10, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Workers' CompensationWorkers' Compensation GuideWorkers' Compensation—Employer's Intentional Misconduct, 48 Am. Jur. Proof of Facts 2d 1Obtaining Workers' Compensation for Back Injuries, 79 Am. Jur. Trials 2314.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 10, |
| , , , , , § 9:11 Construction | 11, 22, 23, 24, 25, 29§ 9:11 Construction |
| Accident: multiple leg fractures, one plaintiff, multiple defendantsA. BackgroundType of Case: Construction AccidentType of Injury: Multiple leg fracturesCase Name: Franco v. Jay Cee of New York Corp.; TJK International RealtyCourt: Supreme Court of New York, New York CountyJudge: Rosalyn RichterDocket Number: 116383/01Verdict Date: August 2004Outcome: Defense verdict, judgment reversed on appeal based on evidentiary rulingBrief Summary of Facts: A 21-year-old male construction worker suffered multiple leg fractures that required surgery with open reduction and internal fixation, while doing construction work on a building, owned by the defendants. The incident occurred when the counterweight of an elevator struck the plaintiff's leg, causing his injuries. The plaintiff contended that the defendants failed to provide a safe workplace and failed to shut down the elevator or deactivate the relays. The plaintiff further contended that the defendants failed to provide adequate safety precautions for those working on the elevators and failed to remedy or warn of a known dangerous condition. The defendants denied liability and contended that the plaintiff failed to use due care for his own safety. On appeal, the court's order denying the plaintiff's motion to set aside the verdict was reversed insofar as it found no liability by the defendant, the court holding that an expert had been wrongly permitted to testify as to the legal effect of an Industrial Code regulation.B. Jury Instructions1. Instructions Proposed by PlaintiffAuthor's Comment: As seen below, plaintiff's charge request conforms to recommended practice in that it makes clear exactly how the request departs from the pattern charge.1:20. Introduction1:21. Review Principles Stated1:22. Falsus in Uno1:23. Burden of Proof1:24. Return to Courtroom1:25. Consider Only Testimony and Exhibits1:27. Exclude Sympathy1:90. Expert WitnessAuthor's Comment: In this case, an expert was wrongly permitted to testify as to the legal effect of an Industrial Code regulation. This is an evidentiary question not directly addressed by the standard expert witness charge, | Accident: multiple leg fractures, one plaintiff, multiple defendantsA. BackgroundType of Case: Construction AccidentType of Injury: Multiple leg fracturesCase Name: Franco v. Jay Cee of New York Corp.; TJK International RealtyCourt: Supreme Court of New York, New York CountyJudge: Rosalyn RichterDocket Number: 116383/01Verdict Date: August 2004Outcome: Defense verdict, judgment reversed on appeal based on evidentiary rulingBrief Summary of Facts: A 21-year-old male construction worker suffered multiple leg fractures that required surgery with open reduction and internal fixation, while doing construction work on a building, owned by the defendants. The incident occurred when the counterweight of an elevator struck the plaintiff's leg, causing his injuries. The plaintiff contended that the defendants failed to provide a safe workplace and failed to shut down the elevator or deactivate the relays. The plaintiff further contended that the defendants failed to provide adequate safety precautions for those working on the elevators and failed to remedy or warn of a known dangerous condition. The defendants denied liability and contended that the plaintiff failed to use due care for his own safety. On appeal, the court's order denying the plaintiff's motion to set aside the verdict was reversed insofar as it found no liability by the defendant, the court holding that an expert had been wrongly permitted to testify as to the legal effect of an Industrial Code regulation.B. Jury Instructions1. Instructions Proposed by PlaintiffAuthor's Comment: As seen below, plaintiff's charge request conforms to recommended practice in that it makes clear exactly how the request departs from the pattern charge.1:20. Introduction1:21. Review Principles Stated1:22. Falsus in Uno1:23. Burden of Proof1:24. Return to Courtroom1:25. Consider Only Testimony and Exhibits1:27. Exclude Sympathy1:90. Expert WitnessAuthor's Comment: In this case, an expert was wrongly permitted to testify as to the legal effect of an Industrial Code regulation. This is an evidentiary question not directly addressed by the standard expert witness charge, |
| . | PJI 1:90. |
| Nonetheless, the Comment to PPI 2:29 plainly instructs: “It is error to permit a party to attempt to prove negligence by expert testimony regarding the meaning and applicability of a statute or regulation imposing a standard of care.” 1A | Nonetheless, the Comment to PPI 2:29 plainly instructs: “It is error to permit a party to attempt to prove negligence by expert testimony regarding the meaning and applicability of a statute or regulation imposing a standard of care.” 1A |
| , | NY PJI3d 2:29, |
| at 339 (2018) (citations omitted).1:91. Interested Witness-GenerallyThe following five charges to be read only if the Court has not, as requested by Plaintiff, determined as a matter of law that Defendant violated Labor Law § 241(6) via 12 NYCRR § 23-2.5(b)(3).2:10. Common Law Standard of Care-Negligence Defined2:12. Common Law Standard of Care-Foreseeability2:70. Proximate Cause2:216. Injured Employee-Statutory Negligence-Safe Place to Work (LL § 200)2:216A. Injured Employee-Violation of Industrial Rule-Vicarious Liability-Nondelegable Duty of Owner-Labor Law § 241(6)Insert between second and third sentences of the first paragraph of this charge the following:“I instruct you, as a matter of law, that the work in which Mr. Franco was engaged, which was the conversion of the building's Elevator No. 2 from manual to automatic operation, IS included within the meaning of the word ‘construction’ as that word is used in this charge.” (Based on Joblon v. Solow, 91 N.Y.2d 457 (1998) and | at 339 (2018) (citations omitted).1:91. Interested Witness-GenerallyThe following five charges to be read only if the Court has not, as requested by Plaintiff, determined as a matter of law that Defendant violated Labor Law § 241(6) via 12 NYCRR § 23-2.5(b)(3).2:10. Common Law Standard of Care-Negligence Defined2:12. Common Law Standard of Care-Foreseeability2:70. Proximate Cause2:216. Injured Employee-Statutory Negligence-Safe Place to Work (LL § 200)2:216A. Injured Employee-Violation of Industrial Rule-Vicarious Liability-Nondelegable Duty of Owner-Labor Law § 241(6)Insert between second and third sentences of the first paragraph of this charge the following:“I instruct you, as a matter of law, that the work in which Mr. Franco was engaged, which was the conversion of the building's Elevator No. 2 from manual to automatic operation, IS included within the meaning of the word ‘construction’ as that word is used in this charge.” (Based on Joblon v. Solow, 91 N.Y.2d 457 (1998) and |
| 12 NYCRR 23-1.4 |
| [b][13] (that rule, cited by the Court of Appeals in | [b][13] (that rule, cited by the Court of Appeals in |
| , | Joblon, |
| provides in its entirety, and for the purposes of, among other laws, Labor Law § 241(6), as follows: “Construction work. All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.”)Read within the charge the applicable violated rule: 12 NYCRR 23-2.5(b)(3): “Where any elevator is being installed, repaired or replaced and persons are working in the shaft, a solid or wire mesh partition shall be provided where necessary to prevent such persons from contacting any adjacent operable elevator or counterweight.”In the space provided within the charge for the recitation of Plaintiff's contentions regarding the claimed rule violation, read as follows:(1) Franco was struck by the adjacent counterweight of the adjacent Elevator No. 1 while working in the shaft; (2) no solid or wire mesh partition was provided by the building owner or the contractor between the workers in the shaft — including Franco — and the adjacent operable elevator or counterweight to prevent the workers from being struck by them; and (3) having failed to provide such a solid or wire mesh partition between the workers and the adjacent operable elevator or counterweight, neither the Defendant nor its contractor rendered the adjacent elevator and counterweight inoperable while the workers — including Franco — were in the shaft.2:277. Damages2:280. Damages-Injury and Pain and Suffering2:280.1. Damages-Loss of Enjoyment of Life2:284. Damages-Personal Injury-Shock, Emotional Distress and Physical Consequences Thereof2:285. Damages-Personal Injury-Expenses Incurred2:290. Damages-Loss of Earnings-In General2:291. Damages-Unrealized Occupation or Profession2:281. Damages-Permanence-Life Expectancy[note: pursuant to Appendix A, Table 2, Plaintiff, whose date of birth is XX/XX/1979, had a life expectancy of 50.1 years as of the date of his birthday this year]1:97. Special Verdict1:28. Conclusion1:29. Alternate Jurors2. Instructions Proposed by Defendant1:20. Introduction1:21. Principles Stated1:22. Falsus In Uno1:23. Burden of Proof1:24. Return to Courtroom1:25. Consider Only Testimony and Exhibits1:26. Five-Sixths Verdict1:27. Exclude Sympathy1:28. Conclusion1:40. Consider Only Competent Evidence1:41. Weighing Testimony1:70. Circumstantial Evidence1:90. Expert witness1:91. Interested Witness (Plaintiff)1:97. Special Verdicts2:10. Negligence Defined2:12. Foreseeability2:36. Comparative Fault2:70. Proximate Cause2:216. Safe Place to Work under Common law (As modified below)2:216A. Violations of Industrial Rule — Vicarious Liability — Nondelegable Duty of Owners/Subcontractor-Labor Law 241 (6) (As modified below)2:277. Damages2:280. Pain & Suffering2:280.2. Income TaxesModified Jury | provides in its entirety, and for the purposes of, among other laws, Labor Law § 241(6), as follows: “Construction work. All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.”)Read within the charge the applicable violated rule: 12 NYCRR 23-2.5(b)(3): “Where any elevator is being installed, repaired or replaced and persons are working in the shaft, a solid or wire mesh partition shall be provided where necessary to prevent such persons from contacting any adjacent operable elevator or counterweight.”In the space provided within the charge for the recitation of Plaintiff's contentions regarding the claimed rule violation, read as follows:(1) Franco was struck by the adjacent counterweight of the adjacent Elevator No. 1 while working in the shaft; (2) no solid or wire mesh partition was provided by the building owner or the contractor between the workers in the shaft — including Franco — and the adjacent operable elevator or counterweight to prevent the workers from being struck by them; and (3) having failed to provide such a solid or wire mesh partition between the workers and the adjacent operable elevator or counterweight, neither the Defendant nor its contractor rendered the adjacent elevator and counterweight inoperable while the workers — including Franco — were in the shaft.2:277. Damages2:280. Damages-Injury and Pain and Suffering2:280.1. Damages-Loss of Enjoyment of Life2:284. Damages-Personal Injury-Shock, Emotional Distress and Physical Consequences Thereof2:285. Damages-Personal Injury-Expenses Incurred2:290. Damages-Loss of Earnings-In General2:291. Damages-Unrealized Occupation or Profession2:281. Damages-Permanence-Life Expectancy[note: pursuant to Appendix A, Table 2, Plaintiff, whose date of birth is XX/XX/1979, had a life expectancy of 50.1 years as of the date of his birthday this year]1:97. Special Verdict1:28. Conclusion1:29. Alternate Jurors2. Instructions Proposed by Defendant1:20. Introduction1:21. Principles Stated1:22. Falsus In Uno1:23. Burden of Proof1:24. Return to Courtroom1:25. Consider Only Testimony and Exhibits1:26. Five-Sixths Verdict1:27. Exclude Sympathy1:28. Conclusion1:40. Consider Only Competent Evidence1:41. Weighing Testimony1:70. Circumstantial Evidence1:90. Expert witness1:91. Interested Witness (Plaintiff)1:97. Special Verdicts2:10. Negligence Defined2:12. Foreseeability2:36. Comparative Fault2:70. Proximate Cause2:216. Safe Place to Work under Common law (As modified below)2:216A. Violations of Industrial Rule — Vicarious Liability — Nondelegable Duty of Owners/Subcontractor-Labor Law 241 (6) (As modified below)2:277. Damages2:280. Pain & Suffering2:280.2. Income TaxesModified Jury |
| Charges. | ChargesPJI 2:216. |
| Injured Employee—Statutory Negligence—Safe Place to Work (modified to include specific of alleged unsafe condition and defenses, as follows)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.’ ”An owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner, as well as the ways of getting to and from the workplaces, reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.Plaintiff claims that the workplace was unsafe in that in that defendant-owner Jay Cee failed to install a wire mesh “bookend” in the elevator shaft behind where plaintiff was working on the day of the accident and the condition was created or allowed to continue because of defendant-owner Jay Cee's negligence. Defendant denies this and claims that it was not aware of and did not control or supervise the method and manner of contractor Pace's work in the shaft and was not permitted near the work area. Plaintiff also claims that the workplace was unsafe in that in that defendant-owner Jay Cee failed to shut down the adjacent elevator on the day of the accident and the condition was created or allowed to continue because of defendant Jay Cee's negligence. Defendant denies this and claims that contractor Pace had the sole responsibility for deciding when to shut down the adjacent elevator and that only Pace had the ability to shut down the elevator.In deciding this issue, you will first consider whether the workplace was unsafe and, if so, whether the unsafe condition resulted from defendant's failure to use reasonable care to provide a safe workplace initially, or from defendant's failure to use reasonable care to correct the condition after defendant or its employee knew or in the use of reasonable care should have known of the condition.If you decide that the workplace was not unsafe or that an unsafe condition did not result from any failure of the defendants to use reasonable care in making or keeping it safe, then you will find for the defendants on this issue.If you decide that the workplace was unsafe and that the unsafe condition resulted from the failure of defendants to exercise reasonable care in making it or keeping it safe, and such failure was a substantial factor in causing plaintiff's injury, you will find for | Injured Employee—Statutory Negligence—Safe Place to Work (modified to include specific of alleged unsafe condition and defenses, as follows)The duty to use reasonable care to provide and maintain a safe place to work is stated in Section 200 of the New York State Labor Law, which requires that the place where plaintiff was working “be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.’ ”An owner owes a duty to workers to use reasonable care to make the workplaces that are under the control of the owner, as well as the ways of getting to and from the workplaces, reasonably safe. The owner who exercises control is required to correct an unsafe condition that is known to the owner or to any of the owner's employees. The owner who exercises control is further required to conduct reasonable inspections to detect any unsafe conditions. The owner is also responsible for the failure to correct an unsafe condition which existed for so long that in the use of reasonable care, the owner or its employees should have known of its existence and corrected it.Plaintiff claims that the workplace was unsafe in that in that defendant-owner Jay Cee failed to install a wire mesh “bookend” in the elevator shaft behind where plaintiff was working on the day of the accident and the condition was created or allowed to continue because of defendant-owner Jay Cee's negligence. Defendant denies this and claims that it was not aware of and did not control or supervise the method and manner of contractor Pace's work in the shaft and was not permitted near the work area. Plaintiff also claims that the workplace was unsafe in that in that defendant-owner Jay Cee failed to shut down the adjacent elevator on the day of the accident and the condition was created or allowed to continue because of defendant Jay Cee's negligence. Defendant denies this and claims that contractor Pace had the sole responsibility for deciding when to shut down the adjacent elevator and that only Pace had the ability to shut down the elevator.In deciding this issue, you will first consider whether the workplace was unsafe and, if so, whether the unsafe condition resulted from defendant's failure to use reasonable care to provide a safe workplace initially, or from defendant's failure to use reasonable care to correct the condition after defendant or its employee knew or in the use of reasonable care should have known of the condition.If you decide that the workplace was not unsafe or that an unsafe condition did not result from any failure of the defendants to use reasonable care in making or keeping it safe, then you will find for the defendants on this issue.If you decide that the workplace was unsafe and that the unsafe condition resulted from the failure of defendants to exercise reasonable care in making it or keeping it safe, and such failure was a substantial factor in causing plaintiff's injury, you will find for |
| plaintiff.. | plaintiff.PJI 2:216A. |
| Injured Employee—Violation of Industrial Rule—Vicarious Liability-Nondelegable Duty of Owner/Subcontractor-Labor Law § 241(6) (modified to recite particular rule and facts constituting violation thereof)Plaintiff claims that defendant Jay Cee, the owner of the building, is liable for his injuries under Section 241(6) of the New York State Labor Law. | Injured Employee—Violation of Industrial Rule—Vicarious Liability-Nondelegable Duty of Owner/Subcontractor-Labor Law § 241(6) (modified to recite particular rule and facts constituting violation thereof)Plaintiff claims that defendant Jay Cee, the owner of the building, is liable for his injuries under Section 241(6) of the New York State Labor Law. |
| Section 241(6) |
| requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein . . .” The State Co mmissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims 12 N.Y.C.R.R. 23-2.5(b)(3) was violated. That Rule reads as follows:(d) Protection of persons in shafts.(4) Where any elevator is being installed, repaired or replaced and persons are working in the shaft, a solid or wire mesh partition shall be provided where necessary to prevent such persons from contacting any adjacent operable elevator or counterweight.Under Labor Law § 241(6), the owner of an area where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of a general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the work in that area. The owner is liable for an injury due to the failure of a general contractor or subcontractor to use reasonable care even though the owner did not control or supervise the area or the work being done there and did not or could not know of any danger to plaintiff.In this case, plaintiff claims that Jay Cee, the owner, is liable to him for his injury because of the failure of Pace Elevator, Inc. to use reasonable care. The only evidence of Pace Elevator, Inc.'s claimed failure to use reasonable care that you may consider in connection with the liability of Jay Cee to plaintiff, is evidence relating to the claimed violation of | requires that all “areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein . . .” The State Co mmissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims 12 N.Y.C.R.R. 23-2.5(b)(3) was violated. That Rule reads as follows:(d) Protection of persons in shafts.(4) Where any elevator is being installed, repaired or replaced and persons are working in the shaft, a solid or wire mesh partition shall be provided where necessary to prevent such persons from contacting any adjacent operable elevator or counterweight.Under Labor Law § 241(6), the owner of an area where construction, excavation or demolition is taking place is liable for injury to a worker in that area caused by the failure of a general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting the work in that area. The owner is liable for an injury due to the failure of a general contractor or subcontractor to use reasonable care even though the owner did not control or supervise the area or the work being done there and did not or could not know of any danger to plaintiff.In this case, plaintiff claims that Jay Cee, the owner, is liable to him for his injury because of the failure of Pace Elevator, Inc. to use reasonable care. The only evidence of Pace Elevator, Inc.'s claimed failure to use reasonable care that you may consider in connection with the liability of Jay Cee to plaintiff, is evidence relating to the claimed violation of |
| 12 N.Y.C.R.R. 23-2.5(d)(3) |
| by Pace Elevator, Inc. Plaintiff claims that the Rule was violated because a wire mesh barrier was not erected to enclose elevator number 1's counterweight. Violation of this rule by Pace Elevator, Inc. would constitute some evidence of Pace Elevator, Inc.'s failure to use reasonable care. Jay Cee den ies that this Rule was violated or that Pace Elevator, Inc. failed to use reasonable care by not erecting a wire mesh barrier to enclose elevator number 1's counterweight. However, Jay Cee contends that 12 N.Y.C.R.R. 23-2.5(d)(3) requires a partition between the operable elevator and its counterweight on one side of the shaft, and the stationary elevator and its counterweight adjacent to the moving elevator in the same shaft. Jay Cee further contends that a barrier or screen enclosing the adjacent elevator's counterweight in its track is not required by | by Pace Elevator, Inc. Plaintiff claims that the Rule was violated because a wire mesh barrier was not erected to enclose elevator number 1's counterweight. Violation of this rule by Pace Elevator, Inc. would constitute some evidence of Pace Elevator, Inc.'s failure to use reasonable care. Jay Cee den ies that this Rule was violated or that Pace Elevator, Inc. failed to use reasonable care by not erecting a wire mesh barrier to enclose elevator number 1's counterweight. However, Jay Cee contends that 12 N.Y.C.R.R. 23-2.5(d)(3) requires a partition between the operable elevator and its counterweight on one side of the shaft, and the stationary elevator and its counterweight adjacent to the moving elevator in the same shaft. Jay Cee further contends that a barrier or screen enclosing the adjacent elevator's counterweight in its track is not required by |
| 12 N.Y.C.R.R. 23-2.5(d)(3) |
| and would violate the Elevator Code and the clearance provisions designed to prevent the counterweight from operating too close to any moving portion of the elevator.Author's Comment: Defendant's request that the jury be charged concerning the defendant's legal contention as to what the Industrial Code regulation requires provides an early hint of the basis on which the judgment in defendant's favor was reversed on appeal — that an expert was wrongly permitted to testify concerning the legal effect of the regulation. The proposed instruction has the jury performing the court's function. Jurors decide factual issues, while courts decide legal ones. See generally | and would violate the Elevator Code and the clearance provisions designed to prevent the counterweight from operating too close to any moving portion of the elevator.Author's Comment: Defendant's request that the jury be charged concerning the defendant's legal contention as to what the Industrial Code regulation requires provides an early hint of the basis on which the judgment in defendant's favor was reversed on appeal — that an expert was wrongly permitted to testify concerning the legal effect of the regulation. The proposed instruction has the jury performing the court's function. Jurors decide factual issues, while courts decide legal ones. See generally |
| PJI 1:6 |
| (Function of Court and Jury (pretrial charge)); | (Function of Court and Jury (pretrial charge)); |
| PJI 1:37 |
| (Jury Function); | (Jury Function); |
| PJI 1:38 |
| (Court's Function).In deciding whether Jay Cee, the owner, is liable to plaintiff because of the claimed failure of Pace Elevator, Inc. to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of 12 N.Y.C.R.R. 23-2.5(d)(3). If you find that there was a violation of 12 N.Y.C.R.R. 23-2.5(d)(3) and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendant Jay Cee on this issue. If you find that Pace Elevator, Inc. did not violate | (Court's Function).In deciding whether Jay Cee, the owner, is liable to plaintiff because of the claimed failure of Pace Elevator, Inc. to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of 12 N.Y.C.R.R. 23-2.5(d)(3). If you find that there was a violation of 12 N.Y.C.R.R. 23-2.5(d)(3) and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff's injuries, you will find for plaintiff against defendant Jay Cee on this issue. If you find that Pace Elevator, Inc. did not violate |
| , | 12 N.Y.C.R.R. 23-2.5(d)(3), |
| or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for Jay Cee on this issue.C. Case Documents Available on Westlaw1. Plaintiff's Request to Charge, | or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff's injuries, you will find for Jay Cee on this issue.C. Case Documents Available on Westlaw1. Plaintiff's Request to Charge, |
| Defendant's | 2005 WL 5544992Defendant's |
| Request to Charge, | Request to Charge, |
| Verdict | 2005 WL 5544991Verdict |
| and Settlement Summary, | and Settlement Summary, |
| Appellate | 2004 WL 3818388Appellate |
| Decision, Franco v. Jay Cee of New York Corp., 36 A.D.3d 445, 827 N.Y.S.2d 143 (1st Dept. 2007)Appellate Brief, Brief for | Decision, Franco v. Jay Cee of New York Corp., 36 A.D.3d 445, 827 N.Y.S.2d 143 (1st Dept. 2007)Appellate Brief, Brief for |
| Appellate | Plaintiff-Appellant, 2006 WL 5064092Appellate |
| Brief, Brief for Defendant-Respondent, 2006 WL 5064093Appellate Brief, Reply Brief for Plaintiff-Appellant, 2006 WL 4990750Trial Motion, Memorandum and Affidavit, Memorandum of Law Regarding Justice Lebedeff's May 18, 2004 Decision and Order As “Law of the Case,” | Brief, Brief for Defendant-Respondent, 2006 WL 5064093Appellate Brief, Reply Brief for Plaintiff-Appellant, 2006 WL 4990750Trial Motion, Memorandum and Affidavit, Memorandum of Law Regarding Justice Lebedeff's May 18, 2004 Decision and Order As “Law of the Case,” |
| Trial | 2005 WL 5574610Trial |
| Motion, Memorandum and Affidavit, Affirmation in Support of Post-Trial Motion, | Motion, Memorandum and Affidavit, Affirmation in Support of Post-Trial Motion, |
| Trial | 2004 WL 5325633Trial |
| Pleading, Verified Answer, | Pleading, Verified Answer, |
| 2. Sample | 2002 WL 342127452. Sample |
| Westlaw Query for Trial Court Documents in Similar Cases: 23-2.5(d)(3)D. Research References1.Key | Westlaw Query for Trial Court Documents in Similar Cases: 23-2.5(d)(3)D. Research References1.Key |
| Numbers , 2.Westlaw | NumbersNegligence 1202, 17322.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series— Construction LawBroder, Trial Handbook for New York Lawyers (3d)New York Construction Law Manual4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 200Appendix 9A Outline of PJI Comments for Injured EmployeesMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Injured Employees: Construction Accidents, on the following specific | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series— Construction LawBroder, Trial Handbook for New York Lawyers (3d)New York Construction Law Manual4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 200Appendix 9A Outline of PJI Comments for Injured EmployeesMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Injured Employees: Construction Accidents, on the following specific |
| topics:Employee's RightsInjured | topics:•Employee's Rights•Injured |
| Employee's Rights Under the Labor | Employee's Rights Under the Labor |
| LawStatutory | Law•Statutory |
| Negligence — Safe Place to | Negligence — Safe Place to |
| WorkViolation | Work•Violation |
| of Industrial Rule — Vicarious Liability — Nondelegable duty of Owner/Subcontractor under Labor Law | of Industrial Rule — Vicarious Liability — Nondelegable duty of Owner/Subcontractor under Labor Law |
| § 241(6)Action | § 241(6)•Action |
| Under Statute Imposing Absolute LiabilityEmployee's RightsIntroductory Statement preceding | Under Statute Imposing Absolute LiabilityEmployee's RightsIntroductory Statement preceding |
| (Vol. | PJI 2:215(Vol. |
| 1B, NY PJI, at 264 (2018))I.The Effect of the Workers' Compensation Law on the Rights of Injured EmployeesA.Exclusive Remedy Against EmployerB.Primary Jurisdiction of Workers' Compensation BoardC.Raising Board's Jurisdiction in Common Law ActionD.When Suit Against Employer Not Barred1.Intentional Torts2.Employment not Covered by Workers' Compensation Law3.Employment Covered by Workers' compensation Law, but Employer Has Not Secured Coverage4.Impairment of Employee's Right to Sue Third Party5.Uniformed Public | 1B, NY PJI, at 264 (2018))I.The Effect of the Workers' Compensation Law on the Rights of Injured EmployeesA.Exclusive Remedy Against EmployerB.Primary Jurisdiction of Workers' Compensation BoardC.Raising Board's Jurisdiction in Common Law ActionD.When Suit Against Employer Not Barred1.Intentional Torts2.Employment not Covered by Workers' Compensation Law3.Employment Covered by Workers' compensation Law, but Employer Has Not Secured Coverage4.Impairment of Employee's Right to Sue Third Party5.Uniformed Public |
| ServantsFirefightersPolice OfficersFirefighters | Servants•Firefighters•Police Officers•Firefighters |
| and Police | and Police |
| OfficersSanitation | Officers•Sanitation |
| WorkersE.Effect on Suits Against Third Party Tortfeasors1.Employee's Claim2.Contribution Claim Against EmployerII.Principles of LiabilityInjured Employees' Rights Under the Labor LawIntroductory Statement preceding | WorkersE.Effect on Suits Against Third Party Tortfeasors1.Employee's Claim2.Contribution Claim Against EmployerII.Principles of LiabilityInjured Employees' Rights Under the Labor LawIntroductory Statement preceding |
| (Vol. | PJI 2:216(Vol. |
| 1B, NY PJI, at 298 (2018))I.Distinction Between Statutory and Common Law LiabilityII.Other Labor Law Provisions Authorizing Recovery by Injured EmployeesIII.Statutory TermsA.Persons Liable1.Owner2.Contractor3.AgentB.Persons Protected — EmployeesC.Buildings and StructuresIV.Exemption for One and Two Family DwellingsA.In GeneralB.Buildings to Which Exemption AppliesC.Exemption's Restriction to Owners Who Do Not Direct or Control The WorkV.Indemnification and Contribution in Actions Under Labor Law §§ 240 and | 1B, NY PJI, at 298 (2018))I.Distinction Between Statutory and Common Law LiabilityII.Other Labor Law Provisions Authorizing Recovery by Injured EmployeesIII.Statutory TermsA.Persons Liable1.Owner2.Contractor3.AgentB.Persons Protected — EmployeesC.Buildings and StructuresIV.Exemption for One and Two Family DwellingsA.In GeneralB.Buildings to Which Exemption AppliesC.Exemption's Restriction to Owners Who Do Not Direct or Control The WorkV.Indemnification and Contribution in Actions Under Labor Law §§ 240 and |
| VI.Conflict | 241VI.Conflict |
| of Laws Issues Under the Labor LawA.In GeneralB.Maritime ActivitiesC.Federal Immigration LawsD.Indian ReservationsStatutory Negligence — Safe Place to WorkComment following | of Laws Issues Under the Labor LawA.In GeneralB.Maritime ActivitiesC.Federal Immigration LawsD.Indian ReservationsStatutory Negligence — Safe Place to WorkComment following |
| (Vol. | PJI 2:216(Vol. |
| 1B, NY PJI, at 343 to 359 (2018))I.Accidents Caused by Unsafe Premises ConditionsA.In GeneralB.Accident SiteII.Accidents Caused by Means or Manner of the workA.In GeneralB.OwnersC.ContractorsD.Agents and OthersViolation of Industrial Rule — Vicarious Liability — Nondelegable Duty of Owner/Subcontractor —Labor Law § 241(6)Comment following | 1B, NY PJI, at 343 to 359 (2018))I.Accidents Caused by Unsafe Premises ConditionsA.In GeneralB.Accident SiteII.Accidents Caused by Means or Manner of the workA.In GeneralB.OwnersC.ContractorsD.Agents and OthersViolation of Industrial Rule — Vicarious Liability — Nondelegable Duty of Owner/Subcontractor —Labor Law § 241(6)Comment following |
| (Vol. | PJI 2:216A(Vol. |
| 1B, NY PJI, at 361 to 457 (2018))I.General introductionII.Nondelegable DutyIII.Requirements of a Labor Law § 241(6) ClaimA.Applicability of Statute1.Accident Site2.Type of Work Leading to AccidentB.Supervision, Control and NoticeIV.Comparative FaultV.Industrial Code RegulationsA.In GeneralB.Expert EvidenceC.Effect of Rule ViolationD.Requirement of a Specific RegulationE.Applicability (treating broad ange of specific regulations under titles 9 and 12 of NYCRR)Action Under Statute Imposing Absolute LiabilityComment following | 1B, NY PJI, at 361 to 457 (2018))I.General introductionII.Nondelegable DutyIII.Requirements of a Labor Law § 241(6) ClaimA.Applicability of Statute1.Accident Site2.Type of Work Leading to AccidentB.Supervision, Control and NoticeIV.Comparative FaultV.Industrial Code RegulationsA.In GeneralB.Expert EvidenceC.Effect of Rule ViolationD.Requirement of a Specific RegulationE.Applicability (treating broad ange of specific regulations under titles 9 and 12 of NYCRR)Action Under Statute Imposing Absolute LiabilityComment following |
| (Vol. | PJI 2:217(Vol. |
| 1B, NY PJI, at 458 to 536 (2018))I.In GeneralII.Principles of Liability Under Labor Law § 240(1)A.Absolute LiabilityB.Elements of the Cause of Action1.In General2.Failure to Provide Safety Device3.Inadequate Safety Device4.Proving Inadequacy of Safety Devices Provided at Work SiteIII.Construction Site Accidents Covered by Labor Law § 240(1)A.In GeneralB.Requirement That Accident Arise From Elevation-Related RiskC.Sites Covered By Labor Law § 240(1)D.Injuries Resulting From Worker's Falling From a HeightE.Injuries Resulting From Falling ObjectsF.Injuries Resulting From Objects or Workers Falling From Trucks and Other VehiclesG.Accidents Involving Excavations and TrenchesH.Accidents Involving Holes in Floor and ManolesIV.Other Statutory Terms used in Labor Law § 240(1)A.Activities to Which Labor Law § 240(1) Applies1.In General2.Demolition3.Alteration4.Construction and Erectiona.Tree Removal and Trimmingb.Work on Air Conditioning Units5.Renovation6.Cleaninga.Window Cleaning Under Labor Law §§ 202 and | 1B, NY PJI, at 458 to 536 (2018))I.In GeneralII.Principles of Liability Under Labor Law § 240(1)A.Absolute LiabilityB.Elements of the Cause of Action1.In General2.Failure to Provide Safety Device3.Inadequate Safety Device4.Proving Inadequacy of Safety Devices Provided at Work SiteIII.Construction Site Accidents Covered by Labor Law § 240(1)A.In GeneralB.Requirement That Accident Arise From Elevation-Related RiskC.Sites Covered By Labor Law § 240(1)D.Injuries Resulting From Worker's Falling From a HeightE.Injuries Resulting From Falling ObjectsF.Injuries Resulting From Objects or Workers Falling From Trucks and Other VehiclesG.Accidents Involving Excavations and TrenchesH.Accidents Involving Holes in Floor and ManolesIV.Other Statutory Terms used in Labor Law § 240(1)A.Activities to Which Labor Law § 240(1) Applies1.In General2.Demolition3.Alteration4.Construction and Erectiona.Tree Removal and Trimmingb.Work on Air Conditioning Units5.Renovation6.Cleaninga.Window Cleaning Under Labor Law §§ 202 and |
| 7.Painting | 240(1)7.Painting |
| and Wallpapering8.Repairing9.Other ActivitiesB.Devices to Which Labor Law § 240(1) Applies1.Stairs and Fire Escapes2.Scaffolds3.Braces4.Hoists5.Planking and Ramps6.Miscellaneous DevicesV.Defenses to Labor Law § 240(1) ClaimsA.Sole Proximate Cause DoctrineB.Recalcitrant Worker DoctrineVI.Procedural ConsiderationsChapter 10Sports-Related InjuriesKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 10:1 Sports-related injuries: wrestling team practice; one plaintiff, three defendantsA. BackgroundType of Case: Injury incurred in supervised high school wrestling practiceType of Injury: Left leg long spiral distal fibular fracture requiring surgical intervention in the form of an open reduction, internal fixation utilizing two interfragmentary screws with a seven hole one third semitublar plate and casting.Case Name: Patrick Schmidt, Plaintiff, v. Massapequa High School, Massapequa Public School District and Vincent D'Agostino, Defendant.Court: Supreme Court of New York, Nassau CountyJudge: Jeffrey S. BrownDocket Number: No. 021382/08Verdict Date: June 15, 2011Outcome: Bifurcated; verdict on liability in favor of plaintiff, allocating 90% of the fault to the defendant high school and 10 percent to the adult defendant who actually caused the injury.Summary: It was alleged that the occurrence took place during wrestling practice when the then infant plaintiff was caused to be removed from practicing with other teammates, and was caused to be engaged by the defendant Vincent D'Agostino; that said defendant engaged the 17 year old plaintiff and picked the plaintiff up and violently and forcibly forced and precipitated the plaintiff to the ground causing the indicated injuries.It was alleged that The Massapequa High School and Massapequa Public School District (hereinafter “Massapequa UFSD”) their agents, servants and employees were negligent, careless and reckless in allowing defendant D'Agostino to enter and participate in school sponsored wrestling practice; that the Massapequa UFSD was negligent and careless in failing to properly control, manage and confine the wrestling practice to students and licensed coaches; that the defendant Massapequa UFSD was negligent and careless in failing to properly train all coaches and wrestling team staff members and the defendant D'Agostino; that the defendant Massapequa UFSD was negligent and careless in the supervision of the wrestling practice, that these defendants failed to avoid the occurrence; that the defendant Massapequa UFSD was negligent and careless in allowing an adult man, specifically the defendant D'Agostino, who possessed markedly superior size, strength and skill, to participate in wrestling practice and in allowing defendant D'Agostino to wrestle teenage boys, and specifically the plaintiff herein; that the defendant Massapequa UFSD within whose custody the then infant plaintiff was in at the time of the accident, failed to act as a reasonably prudent parent would have acted to ensure the welfare and safety of the infant plaintiff; that the defendant Massapequa UFSD negligently and carelessly failed to provide a safe atmosphere and environment for the then infant plaintiff to participate in wrestling practice; that the defendant Massapequa UFSD failed in its non-delegable duty to keep the infant free from harm.Further, it was alleged that the defendant D'Agostino was negligent and careless in that this defendant, a man of superior size, strength and wrestling skill, engaged wrestling team members and specifically this then infant plaintiff in wrestling practice; that this untrained defendant in coaching youth wrestlers, thought himself qualified to participate in wrestling practice; that this defendant created a dangerous and hazardous environment to the wrestlers and specifically the plaintiff by removing the individual wrestlers and specifically the plaintiff herein from wrestling with team members, and this defendant engaged the young wrestlers and performed physical acts upon these wrestlers and specifically the plaintiff herein, that were entirely inappropriate to perform and thereby created a hazardous and dangerous environment; that on the date of the injury this defendant decided to and was allowed by the defendant Massapequa UFSD to participate in wrestling practice; that during this practice this defendant engaged the then infant plaintiff and picked the plaintiff up and forcibly threw the plaintiff to the ground, and this defendant's body fell onto the body of the plaintiff causing injury.Further, the plaintiff claimed that a dangerous and unsafe condition existed in the wrestling room of the Massapequa High School, in having untrained, unlicensed and poorly supervised adult men physically participate in wrestling practice with teenage boys; that the defendants had both actual and constructive notice of the dangerous condition created by them; that prior to the happening of the within incident, the defendant D'Agostino injured another high school wrestler who quit the team; that the defendants caused and created the dangerous condition; that the length of time that this dangerous condition existed was for at least two years prior to the within incident. Constructive notice was additionally claimed upon the ground that the condition complained of existed for a period of time sufficient so that the defendants in the exercised of reasonable care and diligence could and should have observed and remedied the said condition and failed to do so.B. Charges and Interrogatories Proposed by Plaintiff1. 1:22 Falsus in Uno2. 1:60 Burden of Proof—When Burden Differs on Different Issues (Should this Court find that the defendants are entitled to an assumption of risk charge.)3. 1:24 Return to Courtroom4. 1:25 Consider Only Testimony and Exhibits5. 1:26 Five Sixths Verdict6. 1:28 Conclusion7. 1:39 No Inference from Rulings8. 1:40 Consider Only Competent Evidence9. 1:41 Weighing Testimony10. 1:70 Circumstantial Evidence11. 1:90 General Instruction—Expert Witness12. 1:92 Interested Witness—Employee of Party (Joe Catalanotto and Vincent D'Agostino13. 1:94 Use of Pre-Trial Deposition Upon Trial14. 1:97 Special Verdicts15. 2:10 Negligence Defined16. 2:12 Foreseeability17. 2:36 Comparative Fault (Should this Court not charge the Assumption of Risk.)If however this Court chooses to charge Assumption of Risk then the charge of comparative negligence is not given in addition. (Where plaintiffs negligence and assumption of risk are both jury issues, the jury should be instructed to consider plaintiffs fault in its totality and assign a single percentage to that fault., Ciserano v. Sforza, 130A.D. 2d 618, 515 N.Y.S. 2d 548, | and Wallpapering8.Repairing9.Other ActivitiesB.Devices to Which Labor Law § 240(1) Applies1.Stairs and Fire Escapes2.Scaffolds3.Braces4.Hoists5.Planking and Ramps6.Miscellaneous DevicesV.Defenses to Labor Law § 240(1) ClaimsA.Sole Proximate Cause DoctrineB.Recalcitrant Worker DoctrineVI.Procedural ConsiderationsChapter 10Sports-Related InjuriesKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 10:1 Sports-related injuries: wrestling team practice; one plaintiff, three defendantsA. BackgroundType of Case: Injury incurred in supervised high school wrestling practiceType of Injury: Left leg long spiral distal fibular fracture requiring surgical intervention in the form of an open reduction, internal fixation utilizing two interfragmentary screws with a seven hole one third semitublar plate and casting.Case Name: Patrick Schmidt, Plaintiff, v. Massapequa High School, Massapequa Public School District and Vincent D'Agostino, Defendant.Court: Supreme Court of New York, Nassau CountyJudge: Jeffrey S. BrownDocket Number: No. 021382/08Verdict Date: June 15, 2011Outcome: Bifurcated; verdict on liability in favor of plaintiff, allocating 90% of the fault to the defendant high school and 10 percent to the adult defendant who actually caused the injury.Summary: It was alleged that the occurrence took place during wrestling practice when the then infant plaintiff was caused to be removed from practicing with other teammates, and was caused to be engaged by the defendant Vincent D'Agostino; that said defendant engaged the 17 year old plaintiff and picked the plaintiff up and violently and forcibly forced and precipitated the plaintiff to the ground causing the indicated injuries.It was alleged that The Massapequa High School and Massapequa Public School District (hereinafter “Massapequa UFSD”) their agents, servants and employees were negligent, careless and reckless in allowing defendant D'Agostino to enter and participate in school sponsored wrestling practice; that the Massapequa UFSD was negligent and careless in failing to properly control, manage and confine the wrestling practice to students and licensed coaches; that the defendant Massapequa UFSD was negligent and careless in failing to properly train all coaches and wrestling team staff members and the defendant D'Agostino; that the defendant Massapequa UFSD was negligent and careless in the supervision of the wrestling practice, that these defendants failed to avoid the occurrence; that the defendant Massapequa UFSD was negligent and careless in allowing an adult man, specifically the defendant D'Agostino, who possessed markedly superior size, strength and skill, to participate in wrestling practice and in allowing defendant D'Agostino to wrestle teenage boys, and specifically the plaintiff herein; that the defendant Massapequa UFSD within whose custody the then infant plaintiff was in at the time of the accident, failed to act as a reasonably prudent parent would have acted to ensure the welfare and safety of the infant plaintiff; that the defendant Massapequa UFSD negligently and carelessly failed to provide a safe atmosphere and environment for the then infant plaintiff to participate in wrestling practice; that the defendant Massapequa UFSD failed in its non-delegable duty to keep the infant free from harm.Further, it was alleged that the defendant D'Agostino was negligent and careless in that this defendant, a man of superior size, strength and wrestling skill, engaged wrestling team members and specifically this then infant plaintiff in wrestling practice; that this untrained defendant in coaching youth wrestlers, thought himself qualified to participate in wrestling practice; that this defendant created a dangerous and hazardous environment to the wrestlers and specifically the plaintiff by removing the individual wrestlers and specifically the plaintiff herein from wrestling with team members, and this defendant engaged the young wrestlers and performed physical acts upon these wrestlers and specifically the plaintiff herein, that were entirely inappropriate to perform and thereby created a hazardous and dangerous environment; that on the date of the injury this defendant decided to and was allowed by the defendant Massapequa UFSD to participate in wrestling practice; that during this practice this defendant engaged the then infant plaintiff and picked the plaintiff up and forcibly threw the plaintiff to the ground, and this defendant's body fell onto the body of the plaintiff causing injury.Further, the plaintiff claimed that a dangerous and unsafe condition existed in the wrestling room of the Massapequa High School, in having untrained, unlicensed and poorly supervised adult men physically participate in wrestling practice with teenage boys; that the defendants had both actual and constructive notice of the dangerous condition created by them; that prior to the happening of the within incident, the defendant D'Agostino injured another high school wrestler who quit the team; that the defendants caused and created the dangerous condition; that the length of time that this dangerous condition existed was for at least two years prior to the within incident. Constructive notice was additionally claimed upon the ground that the condition complained of existed for a period of time sufficient so that the defendants in the exercised of reasonable care and diligence could and should have observed and remedied the said condition and failed to do so.B. Charges and Interrogatories Proposed by Plaintiff1. 1:22 Falsus in Uno2. 1:60 Burden of Proof—When Burden Differs on Different Issues (Should this Court find that the defendants are entitled to an assumption of risk charge.)3. 1:24 Return to Courtroom4. 1:25 Consider Only Testimony and Exhibits5. 1:26 Five Sixths Verdict6. 1:28 Conclusion7. 1:39 No Inference from Rulings8. 1:40 Consider Only Competent Evidence9. 1:41 Weighing Testimony10. 1:70 Circumstantial Evidence11. 1:90 General Instruction—Expert Witness12. 1:92 Interested Witness—Employee of Party (Joe Catalanotto and Vincent D'Agostino13. 1:94 Use of Pre-Trial Deposition Upon Trial14. 1:97 Special Verdicts15. 2:10 Negligence Defined16. 2:12 Foreseeability17. 2:36 Comparative Fault (Should this Court not charge the Assumption of Risk.)If however this Court chooses to charge Assumption of Risk then the charge of comparative negligence is not given in addition. (Where plaintiffs negligence and assumption of risk are both jury issues, the jury should be instructed to consider plaintiffs fault in its totality and assign a single percentage to that fault., Ciserano v. Sforza, 130A.D. 2d 618, 515 N.Y.S. 2d 548, |
| .)18. 2:48 | McCabe v. Easter, 128 A.D. 2d 257, 516 N.Y.S. 515.)18. 2:48 |
| Comparative Negligence—Persons Under a Disability—Age19. 2:55 Implied Assumption of Risk—(Should this Court find that the infant Plaintiff assumed the risk of injury, and it is argued that this plaintiff did not appreciate and assume the increased risk of injury presented by live wrestling the defendant D'Agostino, then it is argued to the Court that this charge is inapplicable under the doctrine and case law that any risk assumed was under the direction of a superior.)The entire doctrine of “assumption of risk” has no application whatsoever where a participant is under the compulsion of a superior. Yarborough v. City University of New York, 137 Misc. 2d 282, 520 N.Y.S. 2d 518 (Ct. Claims 1987). In such a circumstance, the act or participation of the student is no longer “. . . considered voluntary for assumption of risk purposes.” 137 Misc.2d at 286. The rationale behind this concept is simple. When a child or student is placed in the care and custody of an instructor or teacher, such a student is “. . . justified, at least partially, in assuming that the exercise he was directed to undertake, in the presence of a teacher, would not be unreasonably dangerous to perform.” | Comparative Negligence—Persons Under a Disability—Age19. 2:55 Implied Assumption of Risk—(Should this Court find that the infant Plaintiff assumed the risk of injury, and it is argued that this plaintiff did not appreciate and assume the increased risk of injury presented by live wrestling the defendant D'Agostino, then it is argued to the Court that this charge is inapplicable under the doctrine and case law that any risk assumed was under the direction of a superior.)The entire doctrine of “assumption of risk” has no application whatsoever where a participant is under the compulsion of a superior. Yarborough v. City University of New York, 137 Misc. 2d 282, 520 N.Y.S. 2d 518 (Ct. Claims 1987). In such a circumstance, the act or participation of the student is no longer “. . . considered voluntary for assumption of risk purposes.” 137 Misc.2d at 286. The rationale behind this concept is simple. When a child or student is placed in the care and custody of an instructor or teacher, such a student is “. . . justified, at least partially, in assuming that the exercise he was directed to undertake, in the presence of a teacher, would not be unreasonably dangerous to perform.” |
| .The | 137 Misc. 2d at 286.The |
| plaintiff in the instant case had no choice but to follow the instructions of both Coach Catalanotto and Coach D'Agostino. Both coaches testified that they instructed plaintiff to live wrestle with D'Agostino. That plaintiff testified that he had no choice but to wrestle D'Agostino for fear of losing his standing on his team, the respect of his coaches and peers.To satisfy the theory of “inherent compulsion”, a plaintiff must show that he or she was directed by a superior to do an act, and felt compelled to comply because an economic compulsion “or other circumstance.” Benitez v. New York City Board of Education, 73 N.Y. 2d 650, 543 N.Y.S. 2d 29 (1989).On the issue of inherent compulsion, our courts have held that fear over negative perception and adverse consequences to one's standing on a team can be sufficient. DeGala v. Xavier High School, 203 A.D.2d 187, 610 N.Y.S. 2d 170 (1st Dept. 1994).20. 2:56 Risk Assumed Under the Direction of a Superior21. 2:70 Proximate Cause22. 2:71 Proximate Cause—Concurrent Causes (For example, should the Jury find all defendants negligent, the Court must make clear that one defendant is not exonerated by the negligence of another if defendant's negligence was a substantial factor in causing the injury.)In 23. 2:235 Vicarious Liability—Employer—Employee (As to both Joseph Catalanotto and Vincent D'Agostino)PLAINTIFF'S PROPOSED JURY INTERROGATORIES1. Was the defendants MHS and MPSD, by and through the actions of coach Joseph Catalanotto negligent in allowing defendant Vincent D'Agostino to “live wrestle” the plaintiff?1a. Was the defendants MHS and MPSD's negligence a substantial factor in causing the plaintiffs injury?2. Was the defendant MHS and MPSD, by and through the actions of coach Joseph Catalanott negligent in their supervision of the wrestling practice on January 22, 20082a. Was the defendant MHS and MPSD's negligence a substantial factor in causing the plaintiff's injury?3. Was Vincent D'Agostino negligent in live wrestling the plaintiff?3a. Was the defendant Vincent D'Agostino's negligence a substantial factor in causing plaintiff's injury?4. Was defendant Vincent D'Agostino negligent on January 22. 2008 in failing to safely and properly take the plaintiff down to the mat?4a. Was defendant Vincent D'Agostino's negligence a substantial factor in causing injury?5. If you answered yes to question 1 and/or 2 and you answered yes to 3 and/or 4 then compare the negligence of the defendants MHS and MPSD, by and through coach Joseph Catalanotto to the negligence of defendant Vincent D'Agostino in percentages totaling 100%.MHS and MPSD.————— %Vincent D'Agostino.————— %C. Case Documents Available on Westlaw1.2008 WL 8675307, Verified Complaint (November 7, 2008)2008 WL 8675315 (Trial Motion, Memorandum and Affidavit) Memorandum of Law in Support of Defendant's Motion in Limine to Strike Plaintiff's Request Number 19, Regarding Inherent Compulsion (2008)2009 WL 8477554, Plaintiff's Verified Bill of Particulars (January 27, 2009)2010 WL 7765010 (Trial Motion, Memorandum and Affidavit) Affidavit in Opposition to Defendants' Motion for Summary Judgment (May 14, 2010)2010 WL 7765011 (Trial Motion, Memorandum and Affidavit) Attorney's Affirmation in Reply and in Further Support (Jun. 9, 2010)2011 WL 4862663, Plaintiff's Proposed Jury Charge and Interrogatories (July 16, 2011)2011 WL 4862705 (Trial Filing) Trial Memorandum (June 9, 2011)2011 WL 4862725, Verdict Sheet (June 15, 2011)2011 WL 4900306, Minutes (June 16, 2011)2.Sample Westlaw Query For Trial Court Documents in Similar Cases: team/s practice/p negligen! and wrestl!D. Research References1.Key | plaintiff in the instant case had no choice but to follow the instructions of both Coach Catalanotto and Coach D'Agostino. Both coaches testified that they instructed plaintiff to live wrestle with D'Agostino. That plaintiff testified that he had no choice but to wrestle D'Agostino for fear of losing his standing on his team, the respect of his coaches and peers.To satisfy the theory of “inherent compulsion”, a plaintiff must show that he or she was directed by a superior to do an act, and felt compelled to comply because an economic compulsion “or other circumstance.” Benitez v. New York City Board of Education, 73 N.Y. 2d 650, 543 N.Y.S. 2d 29 (1989).On the issue of inherent compulsion, our courts have held that fear over negative perception and adverse consequences to one's standing on a team can be sufficient. DeGala v. Xavier High School, 203 A.D.2d 187, 610 N.Y.S. 2d 170 (1st Dept. 1994).20. 2:56 Risk Assumed Under the Direction of a Superior21. 2:70 Proximate Cause22. 2:71 Proximate Cause—Concurrent Causes (For example, should the Jury find all defendants negligent, the Court must make clear that one defendant is not exonerated by the negligence of another if defendant's negligence was a substantial factor in causing the injury.)In 23. 2:235 Vicarious Liability—Employer—Employee (As to both Joseph Catalanotto and Vincent D'Agostino)PLAINTIFF'S PROPOSED JURY INTERROGATORIES1. Was the defendants MHS and MPSD, by and through the actions of coach Joseph Catalanotto negligent in allowing defendant Vincent D'Agostino to “live wrestle” the plaintiff?1a. Was the defendants MHS and MPSD's negligence a substantial factor in causing the plaintiffs injury?2. Was the defendant MHS and MPSD, by and through the actions of coach Joseph Catalanott negligent in their supervision of the wrestling practice on January 22, 20082a. Was the defendant MHS and MPSD's negligence a substantial factor in causing the plaintiff's injury?3. Was Vincent D'Agostino negligent in live wrestling the plaintiff?3a. Was the defendant Vincent D'Agostino's negligence a substantial factor in causing plaintiff's injury?4. Was defendant Vincent D'Agostino negligent on January 22. 2008 in failing to safely and properly take the plaintiff down to the mat?4a. Was defendant Vincent D'Agostino's negligence a substantial factor in causing injury?5. If you answered yes to question 1 and/or 2 and you answered yes to 3 and/or 4 then compare the negligence of the defendants MHS and MPSD, by and through coach Joseph Catalanotto to the negligence of defendant Vincent D'Agostino in percentages totaling 100%.MHS and MPSD.————— %Vincent D'Agostino.————— %C. Case Documents Available on Westlaw1.2008 WL 8675307, Verified Complaint (November 7, 2008)2008 WL 8675315 (Trial Motion, Memorandum and Affidavit) Memorandum of Law in Support of Defendant's Motion in Limine to Strike Plaintiff's Request Number 19, Regarding Inherent Compulsion (2008)2009 WL 8477554, Plaintiff's Verified Bill of Particulars (January 27, 2009)2010 WL 7765010 (Trial Motion, Memorandum and Affidavit) Affidavit in Opposition to Defendants' Motion for Summary Judgment (May 14, 2010)2010 WL 7765011 (Trial Motion, Memorandum and Affidavit) Attorney's Affirmation in Reply and in Further Support (Jun. 9, 2010)2011 WL 4862663, Plaintiff's Proposed Jury Charge and Interrogatories (July 16, 2011)2011 WL 4862705 (Trial Filing) Trial Memorandum (June 9, 2011)2011 WL 4862725, Verdict Sheet (June 15, 2011)2011 WL 4900306, Minutes (June 16, 2011)2.Sample Westlaw Query For Trial Court Documents in Similar Cases: team/s practice/p negligen! and wrestl!D. Research References1.Key |
| Numbers | NumbersNegligence 331Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 1709 Form 1Chapter 11Intentional TortsA. Finding The Applicable Law and Instructions§ 11:1NY PJI TablesB. Illustrative Cases§ 11:2Intentional infliction of emotional distress; disability discrimination: economic damages and emotional injuries, one plaintiff, three defendants§ 11:3Defamation, intentional infliction of emotional distress, trespass: one plaintiff, 18 defendants§ 11:4False arrest: one plaintiff, one defendant§ 11:5Battery in performance of duty: one plaintiff, five defendants§ 11:6Torts Other than Negligence; False Arrest; Malicious Prosecution; Outrageous ConductAppendix 11A. Outline of PJI Comments for Torts Other Than NegligenceKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 11:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Torts Other than Negligence, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Torts Other Than Negligence | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 1709 Form 1Chapter 11Intentional TortsA. Finding The Applicable Law and Instructions§ 11:1NY PJI TablesB. Illustrative Cases§ 11:2Intentional infliction of emotional distress; disability discrimination: economic damages and emotional injuries, one plaintiff, three defendants§ 11:3Defamation, intentional infliction of emotional distress, trespass: one plaintiff, 18 defendants§ 11:4False arrest: one plaintiff, one defendant§ 11:5Battery in performance of duty: one plaintiff, five defendants§ 11:6Torts Other than Negligence; False Arrest; Malicious Prosecution; Outrageous ConductAppendix 11A. Outline of PJI Comments for Torts Other Than NegligenceKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 11:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Torts Other than Negligence, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Torts Other Than Negligence |
| [ | [PJI 3:1 |
| to | to |
| ](NY | 3:60.4](NY |
| PJI Volume 2)(“****” = See Comment outline below for greater detail)A.Intentional Torts1.Intent Defined (3:1)2.Interference with Person or propertya.Assault (3:2)b.Battery(1)Generally (3:3)****(2)In Performance of Public Duty or Authority (3:4)c.False Imprisonment and False Arrest (3:5****, 3:5.1)d.Outrageous Conduct Causing Emotional Distress (3:6)****e.Interference With Right to Possession of Decedent's Remains (Loss of Sepulcher) (3:6.1)f.Prima Facie Tort (3:7)g.Trespass to Land (3:8)h.Trespass to Chattels (3:9)i.Conversion(1)Wrongful Taking (3:10)(2)Wrongful Detention (3:11–3:11.2)B.Nuisance1.Private (3:16)2.Publica.Intentional and Unreasonable Interference (3:17)b.Intentional Unlawful Conduct (3:18)C.Fraud and Deceit (3:20, 3:20.1)****D.Defamation1. Introductory Statement****2. Instructionsa.Elements of Case—Public Official/Public Figure (3:23)****—Private Person and Speech of Public Concern (3:23A)****—Private Person and Speech of Private Concern (3:23B)****—Private Person and Speech of Private Concern and Media Defendant (3:23C)—Plain Slander — Public Official/Public Figure (3:23D)—Plain Slander — Private Person and Speech of Public Concern (3:23E)—Plain Slander — Private Person and Speech of Private Concern (3:23F)b.Defamatory Meaning (3:24–3:24.3)****c.Reference to Plaintiff (3:25)d.Publication (3:26)****e.Falsity (3:27)f.Fault(1)Constitutional Malice (3:28)(2)Gross Irresponsibility (3:28A)3. Negligence (Private Figure and Speech of Private Concern and Media Defendant (3:28B)g.Damages(1)Compensatory Damages — Presumed Damages (3:29–3:29.2)****(2)Compensatory Damages — Special Harm Required (3:29A)(3)Compensatory Damages — Actual Harm Required (3:29B)(4)Punitive Damages (3:30, 3:30.1)h.Defenses(1)Absolute Privilege — Defense of Fair and True Report (3:31)****(2)Qualified Privilege (3:32–3:32.2)(3)Truth (3:33)i.Complete charges(1) Public Official/Public Figure (3:34)(2) Private Person and Speech of Public Concern (3:34A)(3) Private Person and Speech of Private Concern and Non-Media Defendant (3:34B)E.Right of Privacy1.In General (3:45)****2.Damages (3:46–3:46.3)F.Misuse of Legal Procedure1.Malicious Prosecution (3:50–3:50A)****2.Abuse of Process (3:51)****G.Business Torts1.Injurious Falsehood (3:55)2.Interference with Contract (3:56)****3.Interference with Prospective Economic Relations (3:57)****4.Unfair Competition — Donnelly Act (3:58, 3:58.1)****5.Breach of Fiduciary Duty (3:59)****H.Constitutional Torts (3:60–3:60.4)Historical Revision Notes:In 2000, | PJI Volume 2)(“****” = See Comment outline below for greater detail)A.Intentional Torts1.Intent Defined (3:1)2.Interference with Person or propertya.Assault (3:2)b.Battery(1)Generally (3:3)****(2)In Performance of Public Duty or Authority (3:4)c.False Imprisonment and False Arrest (3:5****, 3:5.1)d.Outrageous Conduct Causing Emotional Distress (3:6)****e.Interference With Right to Possession of Decedent's Remains (Loss of Sepulcher) (3:6.1)f.Prima Facie Tort (3:7)g.Trespass to Land (3:8)h.Trespass to Chattels (3:9)i.Conversion(1)Wrongful Taking (3:10)(2)Wrongful Detention (3:11–3:11.2)B.Nuisance1.Private (3:16)2.Publica.Intentional and Unreasonable Interference (3:17)b.Intentional Unlawful Conduct (3:18)C.Fraud and Deceit (3:20, 3:20.1)****D.Defamation1. Introductory Statement****2. Instructionsa.Elements of Case—Public Official/Public Figure (3:23)****—Private Person and Speech of Public Concern (3:23A)****—Private Person and Speech of Private Concern (3:23B)****—Private Person and Speech of Private Concern and Media Defendant (3:23C)—Plain Slander — Public Official/Public Figure (3:23D)—Plain Slander — Private Person and Speech of Public Concern (3:23E)—Plain Slander — Private Person and Speech of Private Concern (3:23F)b.Defamatory Meaning (3:24–3:24.3)****c.Reference to Plaintiff (3:25)d.Publication (3:26)****e.Falsity (3:27)f.Fault(1)Constitutional Malice (3:28)(2)Gross Irresponsibility (3:28A)3. Negligence (Private Figure and Speech of Private Concern and Media Defendant (3:28B)g.Damages(1)Compensatory Damages — Presumed Damages (3:29–3:29.2)****(2)Compensatory Damages — Special Harm Required (3:29A)(3)Compensatory Damages — Actual Harm Required (3:29B)(4)Punitive Damages (3:30, 3:30.1)h.Defenses(1)Absolute Privilege — Defense of Fair and True Report (3:31)****(2)Qualified Privilege (3:32–3:32.2)(3)Truth (3:33)i.Complete charges(1) Public Official/Public Figure (3:34)(2) Private Person and Speech of Public Concern (3:34A)(3) Private Person and Speech of Private Concern and Non-Media Defendant (3:34B)E.Right of Privacy1.In General (3:45)****2.Damages (3:46–3:46.3)F.Misuse of Legal Procedure1.Malicious Prosecution (3:50–3:50A)****2.Abuse of Process (3:51)****G.Business Torts1.Injurious Falsehood (3:55)2.Interference with Contract (3:56)****3.Interference with Prospective Economic Relations (3:57)****4.Unfair Competition — Donnelly Act (3:58, 3:58.1)****5.Breach of Fiduciary Duty (3:59)****H.Constitutional Torts (3:60–3:60.4)Historical Revision Notes:In 2000, |
| PJI 3:3 |
| was revised.In 2002, | was revised.In 2002, |
| PJI 3:23C |
| and | and |
| PJI 3:28B |
| were revised.In 2004, | were revised.In 2004, |
| , , , , , , | PJI 3:17, 3:30, 3:34A, 3:34B, 3:46, 3:50, |
| and | and |
| 3:60 |
| were revised, and | were revised, and |
| , , , , | PJI 3:59, 3:60.1, 3:60.2, 3:60.3, |
| and | and |
| 3:60.4 |
| were added.In 2005, | were added.In 2005, |
| PJI 3:20 |
| was revised, and | was revised, and |
| PJI 3:20.1 |
| was added.In 2007, | was added.In 2007, |
| PJI 3:55 |
| was revised.In 2009, | was revised.In 2009, |
| PJI 3:5 |
| was revised, and | was revised, and |
| PJI 3:5.1 |
| was added.In 2011, | was added.In 2011, |
| PJI 3:51 |
| was revised.In 2012, | was revised.In 2012, |
| , , , , | PJI 3:16, 3:50A, 3:51, 3:56, |
| and | and |
| 3:57 |
| were revised.B. Illustrative Cases§ 11:2 Intentional infliction of emotional distress; disability discrimination: economic damages and emotional injuries, one plaintiff, three defendantsAuthor's Comment: For a thorough discussion of the case law relating to the tort of intentional infliction of emotional distress, see 2A | were revised.B. Illustrative Cases§ 11:2 Intentional infliction of emotional distress; disability discrimination: economic damages and emotional injuries, one plaintiff, three defendantsAuthor's Comment: For a thorough discussion of the case law relating to the tort of intentional infliction of emotional distress, see 2A |
| , | NY PJI2d 3:6, |
| at 59 to 77 (2018), covering the following: BackgroundElementsOutrageous ConductIntent or RecklessnessInjuryDefensesFirst Amendment ConsiderationsDamagesStatute of Limitations As to employment-related disability discrimination, see the Comment at 2B | at 59 to 77 (2018), covering the following: BackgroundElementsOutrageous ConductIntent or RecklessnessInjuryDefensesFirst Amendment ConsiderationsDamagesStatute of Limitations As to employment-related disability discrimination, see the Comment at 2B |
| , | NY PJI2d 9:4, |
| at 1062 to 1074 (2018).A. BackgroundType of Case: Disability Discrimination, including under New York Human Rights LawType of Injury: Economic damages and severe mental anguish and emotional distress, including a deep depression that requires regular psychiatric care and antidepressant medicationsCase Name: Brady v. Wal-Mart Stores, Inc., Yem Hung Chin, and James BowenCourt: United States District Court, E.D. New YorkJudge: James Orenstein, Magistrate JudgeDocket Number: CV 03-3843 (JO)Verdict Date: February 23, 2005Outcome: Verdict for Plaintiff of $2.5 million in compensatory damages, reduced to $600,000 on appeal. (See Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157 (E.D.N.Y., 2006.)) Punitive damages of $5 million awarded on federal claims only.Brief Summary of Facts: A former employee sued a large retailer, claiming constructive discharge in violation of the Americans with Disabilities Act (ADA) and the New York Human Rights Law. The plaintiff, who suffered from cerebral palsy, was transferred from a pharmacy position to an outside job retrieving shopping carts, and then to a job in the food department, with knowledge that he was disabled and with purpose of trying to get rid of him. The misconduct disregarded a consent degree in another case ordering “awareness training” of supervisors regarding disability issues.B. Jury Instructions Given by the Court[federal instructions | at 1062 to 1074 (2018).A. BackgroundType of Case: Disability Discrimination, including under New York Human Rights LawType of Injury: Economic damages and severe mental anguish and emotional distress, including a deep depression that requires regular psychiatric care and antidepressant medicationsCase Name: Brady v. Wal-Mart Stores, Inc., Yem Hung Chin, and James BowenCourt: United States District Court, E.D. New YorkJudge: James Orenstein, Magistrate JudgeDocket Number: CV 03-3843 (JO)Verdict Date: February 23, 2005Outcome: Verdict for Plaintiff of $2.5 million in compensatory damages, reduced to $600,000 on appeal. (See Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157 (E.D.N.Y., 2006.)) Punitive damages of $5 million awarded on federal claims only.Brief Summary of Facts: A former employee sued a large retailer, claiming constructive discharge in violation of the Americans with Disabilities Act (ADA) and the New York Human Rights Law. The plaintiff, who suffered from cerebral palsy, was transferred from a pharmacy position to an outside job retrieving shopping carts, and then to a job in the food department, with knowledge that he was disabled and with purpose of trying to get rid of him. The misconduct disregarded a consent degree in another case ordering “awareness training” of supervisors regarding disability issues.B. Jury Instructions Given by the Court[federal instructions |
| omitted]1. . | omitted]1. NY PJI 9:4. |
| Discrimination Based on Disability (modified—transcript pages 14, 15—to reflect allegation that defendants aided and abetted discrimination)Individual Liability Under New York Human Rights Law (Mrs. Chin and Mr. Bowen Only)The New York Human Rights Law states that it is an unlawful discriminatory practice for any person to aid or abet others to discriminate against someone on the basis of their disability, or to attempt to do so. Mr. Brady claims that Mrs. Chin and Mr. Bowen are liable for disability discrimination only under this state law, and I will refer to that claim as the “aiding and abetting” claim.If you find that Mr. Brady has proven his claim of disability discrimination against Wal-Mart, you must then determine whether or not he has proven by a preponderance of the evidence that Mrs. Chin or Mr. Bowen participated in conduct giving rise to that discrimination claim in order to find for plaintiff with respect to the aiding and abetting against that individual defendant. However, if you find that Brady has not proven his disability discrimination claim against Wal-Mart, then you must find for Mrs. Chin and Mr. Bowen with respect to this aiding and abetting | Discrimination Based on Disability (modified—transcript pages 14, 15—to reflect allegation that defendants aided and abetted discrimination)Individual Liability Under New York Human Rights Law (Mrs. Chin and Mr. Bowen Only)The New York Human Rights Law states that it is an unlawful discriminatory practice for any person to aid or abet others to discriminate against someone on the basis of their disability, or to attempt to do so. Mr. Brady claims that Mrs. Chin and Mr. Bowen are liable for disability discrimination only under this state law, and I will refer to that claim as the “aiding and abetting” claim.If you find that Mr. Brady has proven his claim of disability discrimination against Wal-Mart, you must then determine whether or not he has proven by a preponderance of the evidence that Mrs. Chin or Mr. Bowen participated in conduct giving rise to that discrimination claim in order to find for plaintiff with respect to the aiding and abetting against that individual defendant. However, if you find that Brady has not proven his disability discrimination claim against Wal-Mart, then you must find for Mrs. Chin and Mr. Bowen with respect to this aiding and abetting |
| claim.2. . | claim.2. PJI 3:6. |
| Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional | Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional |
| Distress3. . | Distress3. PJI 2:277. |
| Damages—General(modified—transcript pages 18 to 21)Economic DamagesYou must consider the category of economic damages if you find that Mr. Brady has proved either his first claim of disability discrimination under either state or federal law or his second claim of failure to offer a reasonable accommodation.You may award economic damages only for “back pay,” meaning the wages that the plaintiff proves that he has already lost as a result of the defendant's allegedly wrongful conduct. The economic damages that you award must be fair compensation for the plaintiff's actual loss, no more and no less. In order to award fair compensation for actual loss, you must exclude from any award of economic damages the income that the Plaintiff could have earned from comparable employment if he had used reasonable and diligent efforts to obtain such a position.Compensatory DamagesYou must consider the category of compensatory damages if you find that Mr. Brady has proved either his first claim of disability discrimination under either state or federal law, or his second claim of failure to offer a reasonable accommodation, or his claim of intentional infliction of emotional distress.You may award compensatory damages based on the evidence introduced at trial, for emotional pain and suffering, inconvenience, and mental anguish that plaintiff suffered as a result of the defendant's conduct. No evidence of monetary value of such intangible things as pain and suffering has been, or need be, introduced into evidence. There is no exact standard for fixing the compensation to be awarded for these elements of damages. Any award you make should be fair in light of the evidence presented at trial.In determining the amount of economic and compensatory damages, if any, that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guess work. On the other hand, the law does not require that the plaintiff prove the amount of his losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit.Should you choose to award economic or compensatory damages, you should award plaintiff damages only for the injuries he has suffered up to the present date.Nominal DamagesYou must consider the category of nominal damages if you find that Mr. Brady has proved either his first claim of disability discrimination under either state or federal law, or his second claim of failure to offer a reasonable accommodation, or his third claim regarding violations of the federal anti-discrimination law in the job application process.If you find in favor of plaintiff Brady on any claim but you find that plaintiff's damages resulting from the wrongful conduct at issue in that claim have no monetary value, then you may return a verdict specifying that Mr. Brady's damages on that claim in the nominal amount of one dollar.Punitive DamagesYou must consider the category of punitive damages if you find that Mr. Brady has proved any of his claims, with one exception: punitive damages are not available for a claim of disability discrimination under state law, although they are available, and you must consider them, if you find that Mr. Brady has proved his claim of disability discrimination under federal law. In addition, because the amount of punitive damages you might award, if any, may be different depending on the nature of the claim for which you are awarding it, you will be asked about punitive damages for each eligible claim separately in your verdict sheet. To make sure we understand what punitive award, if any, you have in mind, and to avoid improperly awarding more damages than you think appropriate, you will also be asked to specify the total punitive damages, if any, for all of the eligible claims that you find it appropriate to award.If you find that Wal-Mart unlawfully discriminated against Mr. Brady, then under certain circumstances that I will explain, the law allows you, but does not require you, to award punitive damages against Wal-Mart.The purpose of an award of punitive damages is, first, to punish a wrongdoer for misconduct and, second, to warn others against doing the same.You may award punitive damages if you find that Wal-Mart engaged in a discriminatory practice with malice or reckless indifference to Brady's rights to be free from such discrimination.If you determine from the evidence received in the case that Wal-Mart's conduct justified an award of punitive damages, you may award an amount of punitive damages, which all jurors must agree is proper. In fixing the amount, you should consider the following questions:— How offensive was the conduct?— What amount is needed, considering the defendant's financial condition, to prevent repetition?— Does the amount have a reasonable relationship to the actual damage award?If you do award punitive damages, you should fix the amount using calm discretion and sound reason. You must not be influenced by sympathy for or dislike of any party in the case.C. Case Documents Available on Westlaw1.Jury Instruction, 2005 WL 3754152Opinion Denying Defendant's Motion For Judgment as Matter of Law or New Trial, Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d 157 (E.D.N.Y. 2006)Judgment on Verdict, Brady v. Wal-Mart Stores, Inc., 2005 WL 1521407 (E.D.N.Y. 2005)Defendants' Reply Memorandum of Law in Further Support of their Motion for A New Trial and Alternative Request for Remittitur, 2005 WL 3754140Defendants' Reply Memorandum of Law in Further Support of their Motion for Judgment as A Matter of Law, 2005 WL 3754141Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for A New Trial and Alternative Request for Remittitur, 2005 WL 3754134Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Judgment As A matter of Law, 2005 WL 3754136Renewed Motion By Defendants for Judgment as A Matter of Law, 2005 WL 2149628Memorandum of Law In Support of Defendants' Renewed Motion for Judgment as A Matter of Law, 2005 WL 2149629Motion By Defendants for A New Trial and Alternative Request for Remittitur, 2005 WL 2149630Memorandum of Law in Support of Defendants' Motion for a New Trial and Alternative Request for Remittitur, 2005 WL 2149631Renewed Motion By Defendants for Judgment as A Matter of Law, 2005 WL 3754131Memorandum of Law in Support of Defendants' Renewed Motion for Judgment As A Matter of Law, 2005 WL 3754132Memorandum of Law in Support of Defendants' Motion for a New Trial and Alternative Request for Remittitur, 2005 WL 3754133Renewed Motion by Defendants for Judgment as A Matter of Law, 2005 WL 3754142Memorandum of Law in Support of Defendants' Renewed Motion for Judgment as a Matter of Law, | Damages—General(modified—transcript pages 18 to 21)Economic DamagesYou must consider the category of economic damages if you find that Mr. Brady has proved either his first claim of disability discrimination under either state or federal law or his second claim of failure to offer a reasonable accommodation.You may award economic damages only for “back pay,” meaning the wages that the plaintiff proves that he has already lost as a result of the defendant's allegedly wrongful conduct. The economic damages that you award must be fair compensation for the plaintiff's actual loss, no more and no less. In order to award fair compensation for actual loss, you must exclude from any award of economic damages the income that the Plaintiff could have earned from comparable employment if he had used reasonable and diligent efforts to obtain such a position.Compensatory DamagesYou must consider the category of compensatory damages if you find that Mr. Brady has proved either his first claim of disability discrimination under either state or federal law, or his second claim of failure to offer a reasonable accommodation, or his claim of intentional infliction of emotional distress.You may award compensatory damages based on the evidence introduced at trial, for emotional pain and suffering, inconvenience, and mental anguish that plaintiff suffered as a result of the defendant's conduct. No evidence of monetary value of such intangible things as pain and suffering has been, or need be, introduced into evidence. There is no exact standard for fixing the compensation to be awarded for these elements of damages. Any award you make should be fair in light of the evidence presented at trial.In determining the amount of economic and compensatory damages, if any, that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guess work. On the other hand, the law does not require that the plaintiff prove the amount of his losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit.Should you choose to award economic or compensatory damages, you should award plaintiff damages only for the injuries he has suffered up to the present date.Nominal DamagesYou must consider the category of nominal damages if you find that Mr. Brady has proved either his first claim of disability discrimination under either state or federal law, or his second claim of failure to offer a reasonable accommodation, or his third claim regarding violations of the federal anti-discrimination law in the job application process.If you find in favor of plaintiff Brady on any claim but you find that plaintiff's damages resulting from the wrongful conduct at issue in that claim have no monetary value, then you may return a verdict specifying that Mr. Brady's damages on that claim in the nominal amount of one dollar.Punitive DamagesYou must consider the category of punitive damages if you find that Mr. Brady has proved any of his claims, with one exception: punitive damages are not available for a claim of disability discrimination under state law, although they are available, and you must consider them, if you find that Mr. Brady has proved his claim of disability discrimination under federal law. In addition, because the amount of punitive damages you might award, if any, may be different depending on the nature of the claim for which you are awarding it, you will be asked about punitive damages for each eligible claim separately in your verdict sheet. To make sure we understand what punitive award, if any, you have in mind, and to avoid improperly awarding more damages than you think appropriate, you will also be asked to specify the total punitive damages, if any, for all of the eligible claims that you find it appropriate to award.If you find that Wal-Mart unlawfully discriminated against Mr. Brady, then under certain circumstances that I will explain, the law allows you, but does not require you, to award punitive damages against Wal-Mart.The purpose of an award of punitive damages is, first, to punish a wrongdoer for misconduct and, second, to warn others against doing the same.You may award punitive damages if you find that Wal-Mart engaged in a discriminatory practice with malice or reckless indifference to Brady's rights to be free from such discrimination.If you determine from the evidence received in the case that Wal-Mart's conduct justified an award of punitive damages, you may award an amount of punitive damages, which all jurors must agree is proper. In fixing the amount, you should consider the following questions:— How offensive was the conduct?— What amount is needed, considering the defendant's financial condition, to prevent repetition?— Does the amount have a reasonable relationship to the actual damage award?If you do award punitive damages, you should fix the amount using calm discretion and sound reason. You must not be influenced by sympathy for or dislike of any party in the case.C. Case Documents Available on Westlaw1.Jury Instruction, 2005 WL 3754152Opinion Denying Defendant's Motion For Judgment as Matter of Law or New Trial, Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d 157 (E.D.N.Y. 2006)Judgment on Verdict, Brady v. Wal-Mart Stores, Inc., 2005 WL 1521407 (E.D.N.Y. 2005)Defendants' Reply Memorandum of Law in Further Support of their Motion for A New Trial and Alternative Request for Remittitur, 2005 WL 3754140Defendants' Reply Memorandum of Law in Further Support of their Motion for Judgment as A Matter of Law, 2005 WL 3754141Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for A New Trial and Alternative Request for Remittitur, 2005 WL 3754134Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Judgment As A matter of Law, 2005 WL 3754136Renewed Motion By Defendants for Judgment as A Matter of Law, 2005 WL 2149628Memorandum of Law In Support of Defendants' Renewed Motion for Judgment as A Matter of Law, 2005 WL 2149629Motion By Defendants for A New Trial and Alternative Request for Remittitur, 2005 WL 2149630Memorandum of Law in Support of Defendants' Motion for a New Trial and Alternative Request for Remittitur, 2005 WL 2149631Renewed Motion By Defendants for Judgment as A Matter of Law, 2005 WL 3754131Memorandum of Law in Support of Defendants' Renewed Motion for Judgment As A Matter of Law, 2005 WL 3754132Memorandum of Law in Support of Defendants' Motion for a New Trial and Alternative Request for Remittitur, 2005 WL 3754133Renewed Motion by Defendants for Judgment as A Matter of Law, 2005 WL 3754142Memorandum of Law in Support of Defendants' Renewed Motion for Judgment as a Matter of Law, |
| Memorandum | 2005 WL 4891619Memorandum |
| of Law in Support of Defendants' Motion for a New Trial and Alternative Request for Remittitur, 2005 WL 4891620Declaration of A. Kathleen Tomlinson in Support of Motion for Attorney's Fees, 2005 WL 4891603Declaration of Frederick K. Brewington in Support of Motion for Attorney's Fees, 2005 WL 4891604Trial Motion, Memorandum and Affidavit, 2005 WL 3754130Jury Verdict, Settlement Agreement, 2005 WL 3754177Jury Verdict, Settlement Agreement, 2005 WL 3754178Verdict Sheet, 2005 WL 3754179Defendants' Proposed Verdict Sheet, 2005 WL 3754180Plaintiff's Proposed Voir Dire, 2005 WL 3754129Trial Motion, Memorandum and Affidavit, 2005 WL 3754138Plaintiff's Memorandum of Law in Opposition to Defendants' Motions in Limine and Defendants' Motion to Bifurcate the Trial, 2005 WL 3754148Defendant's Local Rule 56.1 Statement of Material Facts Not in Dispute, 2005 WL 3754127Defendant's Reply to Plaintiff's Rule 56.1 Statement and Statement of Additional Material Issues of Fact, 2005 WL 3754128Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment, 2005 WL 3754149Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment, 2005 WL 4891627Plaintiff's Rule 56.1 Statement, 2005 WL 3754126Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, 2005 WL 3754147Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, 2005 WL 4891625Plaintiff's Rule 56.1 Statement, 2005 WL 4891626Memorandum of Law in Support of Defendants' Motion to Bifurcate the Trial With Respect to Liability and Damages, 2005 WL 3754139Memorandum of Law In Support of Defendants' Motion in Limine to Exclude Evidence Concerning Front Pay, 2005 WL 3754144Memorandum of Law in Support of Defendants' Motion In Limine To Exclude Evidence Concerning Plaintiff's Performance For Other Employers, 2005 WL 3754145Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence, 2005 WL 3754146Concerning Plaintiff's Alleged Disability Prior to the time Period in Which he was EmployedMemorandum of Law in Support of Defendants' Motion to Bifurcate the Trial with Respect to Liability and Damages, 2005 WL 4121461Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence Concerning Front Pay, 2005 WL 4891622Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence Concerning Plaintiff's Performance for Other Employers, 2005 WL 4891623Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence Concerning Plaintiff's Alleged Disability Prior to the Time Period in Which He Was Employed, 2005 WL 4891624Defendants' Memorandum of Law in Support of Their Motion in Limine to Preclude Evidence Relating to Consent Decrees Entered Into Between Wal-Mart and the EEOC, 2005 WL 4121460Memorandum of Law in Support of Defendants' Motion for Summary Judgment, 2005 WL 3754135Memorandum of Law in Support of Defendants' Motion for Summary Judgment, 2005 WL 3754143Memorandum of Law in Support of Defendants' Motion for Summary Judgment, 2005 WL 4891621Defendants' Memorandum of Law in Support of Their Motion in Limine to Preclude Evidence Relating to Consent Decrees Entered Into Between Wal-Mart and the Eeoc, 2005 WL 3754137Report on Lost Earnings of Patrick Brady, 2004 WL 3700024Answer to the Amended Complaint, 2004 WL 3960439Report or Affidavit of Mark R. Killingsworth, 2004 WL 5032529Trial Motion, Memorandum and Affidavit, 2004 WL 3691263Amended Complaint and Demand for Jury Trial, 2004 WL 3691264Amended Complaint and Demand for Jury Trial, 2004 WL 5032544Report on Lost Earnings of Patrick Brady by Mark R. Killingsworth, D.Phil., 2004 WL 3751690Report on Lost Earnings of Patrick Brady, 2004 WL 3771236Amended Complaint and Demand for Jury Trial, 2004 WL 3691265Docket, 2:03cv038432.Sample Westlaw Query For Trial Court Documents in Similar Cases: “disabil! /p intent! & employ! job work”D. Research References1.Key | of Law in Support of Defendants' Motion for a New Trial and Alternative Request for Remittitur, 2005 WL 4891620Declaration of A. Kathleen Tomlinson in Support of Motion for Attorney's Fees, 2005 WL 4891603Declaration of Frederick K. Brewington in Support of Motion for Attorney's Fees, 2005 WL 4891604Trial Motion, Memorandum and Affidavit, 2005 WL 3754130Jury Verdict, Settlement Agreement, 2005 WL 3754177Jury Verdict, Settlement Agreement, 2005 WL 3754178Verdict Sheet, 2005 WL 3754179Defendants' Proposed Verdict Sheet, 2005 WL 3754180Plaintiff's Proposed Voir Dire, 2005 WL 3754129Trial Motion, Memorandum and Affidavit, 2005 WL 3754138Plaintiff's Memorandum of Law in Opposition to Defendants' Motions in Limine and Defendants' Motion to Bifurcate the Trial, 2005 WL 3754148Defendant's Local Rule 56.1 Statement of Material Facts Not in Dispute, 2005 WL 3754127Defendant's Reply to Plaintiff's Rule 56.1 Statement and Statement of Additional Material Issues of Fact, 2005 WL 3754128Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment, 2005 WL 3754149Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment, 2005 WL 4891627Plaintiff's Rule 56.1 Statement, 2005 WL 3754126Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, 2005 WL 3754147Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, 2005 WL 4891625Plaintiff's Rule 56.1 Statement, 2005 WL 4891626Memorandum of Law in Support of Defendants' Motion to Bifurcate the Trial With Respect to Liability and Damages, 2005 WL 3754139Memorandum of Law In Support of Defendants' Motion in Limine to Exclude Evidence Concerning Front Pay, 2005 WL 3754144Memorandum of Law in Support of Defendants' Motion In Limine To Exclude Evidence Concerning Plaintiff's Performance For Other Employers, 2005 WL 3754145Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence, 2005 WL 3754146Concerning Plaintiff's Alleged Disability Prior to the time Period in Which he was EmployedMemorandum of Law in Support of Defendants' Motion to Bifurcate the Trial with Respect to Liability and Damages, 2005 WL 4121461Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence Concerning Front Pay, 2005 WL 4891622Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence Concerning Plaintiff's Performance for Other Employers, 2005 WL 4891623Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence Concerning Plaintiff's Alleged Disability Prior to the Time Period in Which He Was Employed, 2005 WL 4891624Defendants' Memorandum of Law in Support of Their Motion in Limine to Preclude Evidence Relating to Consent Decrees Entered Into Between Wal-Mart and the EEOC, 2005 WL 4121460Memorandum of Law in Support of Defendants' Motion for Summary Judgment, 2005 WL 3754135Memorandum of Law in Support of Defendants' Motion for Summary Judgment, 2005 WL 3754143Memorandum of Law in Support of Defendants' Motion for Summary Judgment, 2005 WL 4891621Defendants' Memorandum of Law in Support of Their Motion in Limine to Preclude Evidence Relating to Consent Decrees Entered Into Between Wal-Mart and the Eeoc, 2005 WL 3754137Report on Lost Earnings of Patrick Brady, 2004 WL 3700024Answer to the Amended Complaint, 2004 WL 3960439Report or Affidavit of Mark R. Killingsworth, 2004 WL 5032529Trial Motion, Memorandum and Affidavit, 2004 WL 3691263Amended Complaint and Demand for Jury Trial, 2004 WL 3691264Amended Complaint and Demand for Jury Trial, 2004 WL 5032544Report on Lost Earnings of Patrick Brady by Mark R. Killingsworth, D.Phil., 2004 WL 3751690Report on Lost Earnings of Patrick Brady, 2004 WL 3771236Amended Complaint and Demand for Jury Trial, 2004 WL 3691265Docket, 2:03cv038432.Sample Westlaw Query For Trial Court Documents in Similar Cases: “disabil! /p intent! & employ! job work”D. Research References1.Key |
| Numbers | NumbersDamages 57.20 |
| to | to |
| 57.22Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 11:3 Defamation, | 7:355§ 11:3 Defamation, |
| intentional infliction of emotional distress, trespass: one plaintiff, 18 defendantsAuthor's Comment: The tort of defamation occupies an entire subdivision of NY PJI comprising over 200 pages of pattern instructions, Comments, and special verdict forms (2A NY PJI2d, at 243 to 483 (2018)).A. BackgroundType of Case: Defamation, intentional infliction of emotional distress, trespass, and employment discrimination in the form of a hostile work environment and sexual orientation discriminationType of Injury: Financial loss; anxiety and depressionCase Name: Bell v.Leona Helmsley, Helmsley Enterprises, Inc., Park Lane Hotel, Inc., and “John Does” 1-15, DefendantsCourt: Supreme Court of New YorkJudge: Walter B. TolubDocket Number: 111085/01Verdict Date: February 4, 2003Outcome: Verdict for plaintiff of $11,175,000, which included $10,000,000 in punitive damages. Jury was instructed as to Ms. Helmsley's net worth of $3.2 billion to $4 billion.Author's Comment: The Committee notes that as a rule evidence of a defendant's wealth and other evidence relevant to an award of punitive damages should not be admitted at trial unless and until the jury has brought in a special verdict that plaintiff is entitled to punitive damages against the defendant. 2A | intentional infliction of emotional distress, trespass: one plaintiff, 18 defendantsAuthor's Comment: The tort of defamation occupies an entire subdivision of NY PJI comprising over 200 pages of pattern instructions, Comments, and special verdict forms (2A NY PJI2d, at 243 to 483 (2018)).A. BackgroundType of Case: Defamation, intentional infliction of emotional distress, trespass, and employment discrimination in the form of a hostile work environment and sexual orientation discriminationType of Injury: Financial loss; anxiety and depressionCase Name: Bell v.Leona Helmsley, Helmsley Enterprises, Inc., Park Lane Hotel, Inc., and “John Does” 1-15, DefendantsCourt: Supreme Court of New YorkJudge: Walter B. TolubDocket Number: 111085/01Verdict Date: February 4, 2003Outcome: Verdict for plaintiff of $11,175,000, which included $10,000,000 in punitive damages. Jury was instructed as to Ms. Helmsley's net worth of $3.2 billion to $4 billion.Author's Comment: The Committee notes that as a rule evidence of a defendant's wealth and other evidence relevant to an award of punitive damages should not be admitted at trial unless and until the jury has brought in a special verdict that plaintiff is entitled to punitive damages against the defendant. 2A |
| , | NY PJI2d 3:30, |
| at 402 (2018).Brief Summary of Facts: The former general manager for a New York hotel sued for defamation, intentional infliction of emotional distress, trespass, and employment discrimination in the form of a hostile work environment and sexual orientation discrimination, contending that the defendant Leona Helmsley harassed him with abusive language and conduct and then fired him because he is gay. She denied the allegations, claiming that the plaintiff was terminated because he had used drugs and lied on his resume, held an unauthorized party at the hotel, and gave free hotel rooms to his friends.B. Jury Instructions1. Instructions Given by the | at 402 (2018).Brief Summary of Facts: The former general manager for a New York hotel sued for defamation, intentional infliction of emotional distress, trespass, and employment discrimination in the form of a hostile work environment and sexual orientation discrimination, contending that the defendant Leona Helmsley harassed him with abusive language and conduct and then fired him because he is gay. She denied the allegations, claiming that the plaintiff was terminated because he had used drugs and lied on his resume, held an unauthorized party at the hotel, and gave free hotel rooms to his friends.B. Jury Instructions1. Instructions Given by the |
| Court1. . | Court1. PJI 2:325. |
| Damages—Mitigation—General Principles (Failure to Have an Operation) (modified—transcript page 2068 at | Damages—Mitigation—General Principles (Failure to Have an Operation) (modified—transcript page 2068 at |
| — | 2003 WL 25431179—modified |
| to reflect plaintiffs failure to accept an offer of employment)Also, you have heard that there has been an offer to reinstate him to the Helmsley organization by way of a job in the Middletown Hotel and you have to consider that offer as well.Therefore, if you find that the defendants made a bona fide unconditional offer of reinstatement to Mr. Bell, then any award of damages for back pay is limited from the time period from the day that he was terminated, the date that the first offer of reinstatement was | to reflect plaintiffs failure to accept an offer of employment)Also, you have heard that there has been an offer to reinstate him to the Helmsley organization by way of a job in the Middletown Hotel and you have to consider that offer as well.Therefore, if you find that the defendants made a bona fide unconditional offer of reinstatement to Mr. Bell, then any award of damages for back pay is limited from the time period from the day that he was terminated, the date that the first offer of reinstatement was |
| made.2. . | made.2. PJI 2:278. |
| Damages—Punitive [former] (modified—transcript pages 2104, 2105 at | Damages—Punitive [former] (modified—transcript pages 2104, 2105 at |
| —to | 2003 WL 25431178—to |
| reflect extraordinary net worth of defendant)You may award punitive damages in such amount as in your sound judgment and discretion you find will punish the defendant for what she did and the defendants and other people from acting in a similar way in the future. In arriving at your decision as to the amount of punitive damages, you should consider the following factors:One: The nature and reprehensibility of what the defendant did; that would include character of the wrongdoing, how long it went on, the defendant's awareness of what harm the conduct caused or was likely to cause.Two: The actual and potential harm created by defendant's conduct. The amount of punitive damages should bear a reasonable relationship not only to the actual harm that the plaintiff suffered or may suffer from defendant's conduct, but also to the potential for harm created by that conduct.Three: The defendant's financial condition and the impact your punitive damages award will have on the defendant. In this regard, I will advise you that counsel have agreed that Mrs. Helmsley's net worth is between 3.2 and 4 billion dollars.2. Instructions Proposed By | reflect extraordinary net worth of defendant)You may award punitive damages in such amount as in your sound judgment and discretion you find will punish the defendant for what she did and the defendants and other people from acting in a similar way in the future. In arriving at your decision as to the amount of punitive damages, you should consider the following factors:One: The nature and reprehensibility of what the defendant did; that would include character of the wrongdoing, how long it went on, the defendant's awareness of what harm the conduct caused or was likely to cause.Two: The actual and potential harm created by defendant's conduct. The amount of punitive damages should bear a reasonable relationship not only to the actual harm that the plaintiff suffered or may suffer from defendant's conduct, but also to the potential for harm created by that conduct.Three: The defendant's financial condition and the impact your punitive damages award will have on the defendant. In this regard, I will advise you that counsel have agreed that Mrs. Helmsley's net worth is between 3.2 and 4 billion dollars.2. Instructions Proposed By |
| Defendants1. . | Defendants1. PJI 1:23. |
| Burden of | Burden of |
| Proof2. . | Proof2. PJI 1:27. |
| Exclude Sympathy (modified)In reaching your verdict, you are not to be affected by sympathy for any of the parties, or what the reaction of the parties or of the public to your verdict may be, or whether it will please or displease anyone, or be popular or unpopular, or, indeed, any consideration outside the case as it has been presented to you in this courtroom. The fact that HELMSLEY ENTERPRISES and the PARK LANE HOTEL are corporations does not entitle them to more or less consideration. Nor does the fact that CHARLES BELL and Mrs. HELMSLEY are individual persons entitle them to more or less consideration. You should consider only the evidence—both the testimony and the exhibits, and the inferences you make from the evidence—then find the facts from what you consider to be the believable evidence, and then apply the law as I now give it to you. Your verdict will be determined by the conclusions that you reach, no matter whom the verdict helps or hurts.[Omitted: Instructions on Discrimination | Exclude Sympathy (modified)In reaching your verdict, you are not to be affected by sympathy for any of the parties, or what the reaction of the parties or of the public to your verdict may be, or whether it will please or displease anyone, or be popular or unpopular, or, indeed, any consideration outside the case as it has been presented to you in this courtroom. The fact that HELMSLEY ENTERPRISES and the PARK LANE HOTEL are corporations does not entitle them to more or less consideration. Nor does the fact that CHARLES BELL and Mrs. HELMSLEY are individual persons entitle them to more or less consideration. You should consider only the evidence—both the testimony and the exhibits, and the inferences you make from the evidence—then find the facts from what you consider to be the believable evidence, and then apply the law as I now give it to you. Your verdict will be determined by the conclusions that you reach, no matter whom the verdict helps or hurts.[Omitted: Instructions on Discrimination |
| Claims]3. . | Claims]3. PJI 3:23F. |
| Intentional Torts—Defamation—Elements of Case—Plain Slander—Private Person and Speech of Private | Intentional Torts—Defamation—Elements of Case—Plain Slander—Private Person and Speech of Private |
| Concern4. . | Concern4. PJI 3:24. |
| Intentional Torts—Defamation—Defamatory Meaning (modified)BELL must prove that the statements were statements of fact, rather than merely Mrs. HELMSLEY's opinion, which means that the statement would have to be reasonably understood by the average listener to be a statement of fact, rather than opinion, about BELL.If you find that Mrs. HELMSLEY's statements were simply her opinion, then you will find for the defendants and proceed no | Intentional Torts—Defamation—Defamatory Meaning (modified)BELL must prove that the statements were statements of fact, rather than merely Mrs. HELMSLEY's opinion, which means that the statement would have to be reasonably understood by the average listener to be a statement of fact, rather than opinion, about BELL.If you find that Mrs. HELMSLEY's statements were simply her opinion, then you will find for the defendants and proceed no |
| further.5. . | further.5. PJI 3:23B. |
| Intentional Torts—Defamation—Elements of Case—Private Person and Matter of Private Concern and Non-Media Defendant (modified by supplementing instruction to reflect defamation relating to business, profession or trade, etc. under | Intentional Torts—Defamation—Elements of Case—Private Person and Matter of Private Concern and Non-Media Defendant (modified by supplementing instruction to reflect defamation relating to business, profession or trade, etc. under |
| )BELL | PJI 3:24)BELL |
| has asserted a cause of action for slander per se, a form of defamation.To recover damages for slander per se, the plaintiff has the burden of proving five elements by a preponderance of the evidence.First, BELL must prove that the defendants actually made statements that were defamatory. Here, in this slander per se claim, it would specifically involve a statement regarding the plaintiff in the context of his profession. I will explain this more fully shortly.Second, the plaintiff must prove that the defaming statements were statement of fact, rather than opinion.Third, the plaintiff must prove that the defendants published or broadcast the statements to the public, meaning that the defendants communicated the statements to someone other than the plaintiff himself.Fourth, the plaintiff must prove that the statements were false.Fifth, the plaintiff must prove that defendants made the statements solely on account of malice or ill will toward the plaintiff.If you find that the plaintiff has failed to prove any one of these five elements, then your verdict must be for the defendants on this claim. Note, however, that under his slander per se claim, BELL is not required to prove special damages (i.e., financial loss) because damages are presumed due to the nature of the alleged statements (i.e., about the plaintiff in the context of his profession).In evaluating the evidence on the plaintiff's claims of slander, you must decide first whether Mrs. HELMSLEY actually made the statements which have been attributed to her, and, if so, whether the statements were defamatory per se. A statement is defamatory per se if it tends to injure a person's reputation in his or her office or employment.In making this determination, you must decide whether a reasonable person who heard the statements at issue would understand from those words that BELL was incompetent in his profession. In deciding whether a statement is defamatory per se, you may consider the words actually spoken, the person to whom the words were spoken, and the circumstances under which they were spoken. You should test the statement “against the understanding of the average [listener]” upon hearing the statement and according them their natural meaning and not “a strained or artificial interpretation.” “The mere expression of unhappiness with [the manner in which an employee is] fulfilling [his] duties” or a simple expression by an employer of dissatisfaction with an employee's performance is not defamatory.You should also consider any evidence of the effect that the statement actually had on the person to whom it was spoken and whether it adversely affected his or her opinion of the plaintiff's competence as an employee. For example, if the person who allegedly heard the statement indicated that the statement did not lead him or her to believe that BELL was, in fact, incompetent at his profession, then the statement was not defamatory per se.If you find that Mrs. HELMSLEY did not make the allegedly offending statement or if you find that the statement would not be reasonably understood by the average listener to mean that the BELL was incompetent in his profession, then you must find for the defendants and you need proceed no further as to this | has asserted a cause of action for slander per se, a form of defamation.To recover damages for slander per se, the plaintiff has the burden of proving five elements by a preponderance of the evidence.First, BELL must prove that the defendants actually made statements that were defamatory. Here, in this slander per se claim, it would specifically involve a statement regarding the plaintiff in the context of his profession. I will explain this more fully shortly.Second, the plaintiff must prove that the defaming statements were statement of fact, rather than opinion.Third, the plaintiff must prove that the defendants published or broadcast the statements to the public, meaning that the defendants communicated the statements to someone other than the plaintiff himself.Fourth, the plaintiff must prove that the statements were false.Fifth, the plaintiff must prove that defendants made the statements solely on account of malice or ill will toward the plaintiff.If you find that the plaintiff has failed to prove any one of these five elements, then your verdict must be for the defendants on this claim. Note, however, that under his slander per se claim, BELL is not required to prove special damages (i.e., financial loss) because damages are presumed due to the nature of the alleged statements (i.e., about the plaintiff in the context of his profession).In evaluating the evidence on the plaintiff's claims of slander, you must decide first whether Mrs. HELMSLEY actually made the statements which have been attributed to her, and, if so, whether the statements were defamatory per se. A statement is defamatory per se if it tends to injure a person's reputation in his or her office or employment.In making this determination, you must decide whether a reasonable person who heard the statements at issue would understand from those words that BELL was incompetent in his profession. In deciding whether a statement is defamatory per se, you may consider the words actually spoken, the person to whom the words were spoken, and the circumstances under which they were spoken. You should test the statement “against the understanding of the average [listener]” upon hearing the statement and according them their natural meaning and not “a strained or artificial interpretation.” “The mere expression of unhappiness with [the manner in which an employee is] fulfilling [his] duties” or a simple expression by an employer of dissatisfaction with an employee's performance is not defamatory.You should also consider any evidence of the effect that the statement actually had on the person to whom it was spoken and whether it adversely affected his or her opinion of the plaintiff's competence as an employee. For example, if the person who allegedly heard the statement indicated that the statement did not lead him or her to believe that BELL was, in fact, incompetent at his profession, then the statement was not defamatory per se.If you find that Mrs. HELMSLEY did not make the allegedly offending statement or if you find that the statement would not be reasonably understood by the average listener to mean that the BELL was incompetent in his profession, then you must find for the defendants and you need proceed no further as to this |
| claim.6. . | claim.6. PJI 3:26. |
| Intentional | Intentional |
| Torts—Defamation—PublicationFalsity7. . | Torts—Defamation—PublicationFalsity7. PJI 3:27. |
| Intentional | Intentional |
| Torts—Defamation—Falsity8. . | Torts—Defamation—Falsity8. PJI 3:32. |
| Intentional Torts—Defamation—Qualified | Intentional Torts—Defamation—Qualified |
| Privilege—Generally9. . | Privilege—Generally9. PJI 3:32.1. |
| [Supplemental Charge] Intentional Torts—Defamation— Qualified Privilege—Generallymodified to reflect statements made by an employer regarding work performance of an employee.Certain statements, although claimed to be defamatory, are nonetheless not actionable because they are entitled to a “qualified privilege.” For example, statements made by an employer concerning the work performance of an employee is privileged so long as they are made with a good faith belief that they are true. Such statements may be false and defamatory, yet the person making the statements will not be held liable unless he or she abused the privilege. Under the circumstances of this case, the statements attributed to Mrs. HELMSLEY, if made, occurred under privileged circumstances involving the defendants' business. Therefore, good faith on the part of Mrs. HELMSLEY is presumed and, in order to hold the defendants liable for any defamatory statements, BELL must prove that in making the statements Mrs. HELMSLEY abused this privilege.A qualified privilege may be abused in one of two ways. First, the privilege is abused if Mrs. HELMSLEY made the statements solely out of ill will or personal spite toward BELL. In making this determination, you should consider the language used and the manner in which the statements were made. Note, however, that if Mrs. HELMSLEY had another motivation that was not improper, then the privilege survives to immunize all such statements from liability. Thus, BELL must prove that Mrs. HELMSLEY's sole motivation in making the statements was actual malice.Second, this qualified privilege may be abused if Mrs. HELMSLEY made the statements with a reckless disregard for the truth or falsity of their content. Reckless disregard occurs where the speaker entertains a serious doubt as to the truth of the statements or has made the statements with a high degree of awareness that they were probably false. You should take note of the fact that the burden rests with the plaintiff to prove reckless disregard by “clear and convincing evidence.” This is a higher standard of proof than the preponderance of the evidence standard I have already explained to you. Clear and convincing evidence requires that the plaintiff must prove to your satisfaction that it is highly probable or reasonably certain that the speaker made the statements with reckless disregard as to their truth or falsity.If your finding is that Mrs. HELMSLEY's statements were not made solely out of ill will toward the plaintiff and were not made with reckless disregard of the truth or falsity of their content, then you will not find in favor of BELL, but you will find in favor of the defendants on this claim.Author's Comment: The relevant NY PJI Comment specifically discusses the qualified privilege arising in the employment setting, at 2A | [Supplemental Charge] Intentional Torts—Defamation— Qualified Privilege—Generallymodified to reflect statements made by an employer regarding work performance of an employee.Certain statements, although claimed to be defamatory, are nonetheless not actionable because they are entitled to a “qualified privilege.” For example, statements made by an employer concerning the work performance of an employee is privileged so long as they are made with a good faith belief that they are true. Such statements may be false and defamatory, yet the person making the statements will not be held liable unless he or she abused the privilege. Under the circumstances of this case, the statements attributed to Mrs. HELMSLEY, if made, occurred under privileged circumstances involving the defendants' business. Therefore, good faith on the part of Mrs. HELMSLEY is presumed and, in order to hold the defendants liable for any defamatory statements, BELL must prove that in making the statements Mrs. HELMSLEY abused this privilege.A qualified privilege may be abused in one of two ways. First, the privilege is abused if Mrs. HELMSLEY made the statements solely out of ill will or personal spite toward BELL. In making this determination, you should consider the language used and the manner in which the statements were made. Note, however, that if Mrs. HELMSLEY had another motivation that was not improper, then the privilege survives to immunize all such statements from liability. Thus, BELL must prove that Mrs. HELMSLEY's sole motivation in making the statements was actual malice.Second, this qualified privilege may be abused if Mrs. HELMSLEY made the statements with a reckless disregard for the truth or falsity of their content. Reckless disregard occurs where the speaker entertains a serious doubt as to the truth of the statements or has made the statements with a high degree of awareness that they were probably false. You should take note of the fact that the burden rests with the plaintiff to prove reckless disregard by “clear and convincing evidence.” This is a higher standard of proof than the preponderance of the evidence standard I have already explained to you. Clear and convincing evidence requires that the plaintiff must prove to your satisfaction that it is highly probable or reasonably certain that the speaker made the statements with reckless disregard as to their truth or falsity.If your finding is that Mrs. HELMSLEY's statements were not made solely out of ill will toward the plaintiff and were not made with reckless disregard of the truth or falsity of their content, then you will not find in favor of BELL, but you will find in favor of the defendants on this claim.Author's Comment: The relevant NY PJI Comment specifically discusses the qualified privilege arising in the employment setting, at 2A |
| , | NY PJI2d 3:32, |
| at 424 to 446 | at 424 to 446 |
| (2018).10. . | (2018).10. PJI 3:29. |
| Intentional Torts—Defamation—Compensatory Damages—Presumed Damages—Neither Actual Harm Nor Special Harm | Intentional Torts—Defamation—Compensatory Damages—Presumed Damages—Neither Actual Harm Nor Special Harm |
| Required11. . | Required11. PJI 3:8. |
| Intentional Torts-Interference with Person or Property-Trespass to Land (modified to reflect claim that defendant caused another one of her employees to enter plaintiff's hotel suite and search his belongings, and enter the plaintiff's office and remove his personal papers and possessions without his permission)Note that damages are not an element of trespass. Therefore, even if you find for the plaintiff on his trespass claim, this does not necessarily mean that he sustained actual damages. When the “invasion of a plaintiff's rights is trifling or damages cannot be ascertained, nominal damages are allowed Compensation may range from one dollar, if you decide that there was no injury, to a fair sum if you decide the injury was | Intentional Torts-Interference with Person or Property-Trespass to Land (modified to reflect claim that defendant caused another one of her employees to enter plaintiff's hotel suite and search his belongings, and enter the plaintiff's office and remove his personal papers and possessions without his permission)Note that damages are not an element of trespass. Therefore, even if you find for the plaintiff on his trespass claim, this does not necessarily mean that he sustained actual damages. When the “invasion of a plaintiff's rights is trifling or damages cannot be ascertained, nominal damages are allowed Compensation may range from one dollar, if you decide that there was no injury, to a fair sum if you decide the injury was |
| substantial.12. . | substantial.12. PJI 3:6. |
| Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress (modified to reflect intentional, rather than mere reckless, | Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress (modified to reflect intentional, rather than mere reckless, |
| misconduct)13. . | misconduct)13. PJI 3:30. |
| Intentional Torts—Defamation—Punitive Damages (modified (1) to recognize that punitive damages may be awarded for the plaintiff's claims of defamation, trespass, intentional infliction of emotional distress, and discrimination claims, and (2) to reflect unclean hands defense relating to plaintiff's alleged resume fraud and his possession or use of illegal substances)Punitive damages are extraordinary. Such extraordinary damages on plaintiff's claims may be awarded only if you find by a preponderance of the evidence that defendants' acts were outrageously or maliciously or oppressively or wantonly done. Furthermore, punitive damages may be allowed, based on the standards I have described, only if you should first award the plaintiffs a verdict for actual or compensatory damages. You should also bear in mind the requirement of the law that the amount of such extraordinary damages, if awarded, must be fixed with discretion and reason and must never be awarded or fixed in any amount because of sympathy or bias or prejudice toward any party to the case. Moreover, if you decide to award punitive damages, any such damages must be in relationship to the amount of any compensatory damages awarded.When considering BELL's demand for punitive damages, keep in mind that BELL must prove that defendants acted with an “evil or reprehensible motive.” You must also consider BELL's role and actions in this case. A plaintiff with unclean hands cannot collect punitive damages. For example, if you find that BELL engaged in resume fraud or possessed or abused illegal substances against the company rules, or gave away hotel rooms without a legitimate business purpose, or colluded with Pat Ward to get his job in the first place, then BELL is precluded from recovering any punitive damages.The damages that I have discussed with you so far are called compensatory damages, because they are intended to do just that—to compensate for actual injuries—if any—which have been sustained. In addition, BELL asks that you make him an additional award of punitive damages. Punitive damages may be potentially available for BELL's discrimination claims, defamation claims and his trespass and intentional infliction of emotional distress claims. As I explained to you earlier, you should not assume from the fact that I am giving you this instruction that any award of punitive damages is appropriate or justified. The award of punitive damages is considered to be quite extraordinary and such an award should only be awarded if you find the following requirements met.[Omitted instruction on discrimination claim]To recover punitive damages on his defamation claims, the burden rests with BELL to prove substantially more than that Mrs. HELMSLEY made derogatory remarks about BELL to his fellow employees or that she made the alleged statements with malice. Such proof is not enough to support an award of punitive damages. This heightened burden on BELL also requires that he show more than that Mrs. HELMSLEY made the statements “with a high degree of awareness that the statements . . . were false.” Rather, in order to recover punitive damages on his defamation claims, BELL must prove that Mrs. HELMSLEY made the defamatory statements with “hatred, ill will [or] spite,” or that she engaged in conduct which you find to be “malicious, wanton, reckless or in willful disregard of” the rights of the plaintiff.To recover punitive damages under his trespass claim, BELL must show that the defendants acted with actual malice, involving an intentional wrongdoing, or that such conduct amounted to a “wanton, willful or reckless disregard of plaintiff's rights.”3. Defendants' Proposed Special Verdict Form[Omitted: Count One and Count | Intentional Torts—Defamation—Punitive Damages (modified (1) to recognize that punitive damages may be awarded for the plaintiff's claims of defamation, trespass, intentional infliction of emotional distress, and discrimination claims, and (2) to reflect unclean hands defense relating to plaintiff's alleged resume fraud and his possession or use of illegal substances)Punitive damages are extraordinary. Such extraordinary damages on plaintiff's claims may be awarded only if you find by a preponderance of the evidence that defendants' acts were outrageously or maliciously or oppressively or wantonly done. Furthermore, punitive damages may be allowed, based on the standards I have described, only if you should first award the plaintiffs a verdict for actual or compensatory damages. You should also bear in mind the requirement of the law that the amount of such extraordinary damages, if awarded, must be fixed with discretion and reason and must never be awarded or fixed in any amount because of sympathy or bias or prejudice toward any party to the case. Moreover, if you decide to award punitive damages, any such damages must be in relationship to the amount of any compensatory damages awarded.When considering BELL's demand for punitive damages, keep in mind that BELL must prove that defendants acted with an “evil or reprehensible motive.” You must also consider BELL's role and actions in this case. A plaintiff with unclean hands cannot collect punitive damages. For example, if you find that BELL engaged in resume fraud or possessed or abused illegal substances against the company rules, or gave away hotel rooms without a legitimate business purpose, or colluded with Pat Ward to get his job in the first place, then BELL is precluded from recovering any punitive damages.The damages that I have discussed with you so far are called compensatory damages, because they are intended to do just that—to compensate for actual injuries—if any—which have been sustained. In addition, BELL asks that you make him an additional award of punitive damages. Punitive damages may be potentially available for BELL's discrimination claims, defamation claims and his trespass and intentional infliction of emotional distress claims. As I explained to you earlier, you should not assume from the fact that I am giving you this instruction that any award of punitive damages is appropriate or justified. The award of punitive damages is considered to be quite extraordinary and such an award should only be awarded if you find the following requirements met.[Omitted instruction on discrimination claim]To recover punitive damages on his defamation claims, the burden rests with BELL to prove substantially more than that Mrs. HELMSLEY made derogatory remarks about BELL to his fellow employees or that she made the alleged statements with malice. Such proof is not enough to support an award of punitive damages. This heightened burden on BELL also requires that he show more than that Mrs. HELMSLEY made the statements “with a high degree of awareness that the statements . . . were false.” Rather, in order to recover punitive damages on his defamation claims, BELL must prove that Mrs. HELMSLEY made the defamatory statements with “hatred, ill will [or] spite,” or that she engaged in conduct which you find to be “malicious, wanton, reckless or in willful disregard of” the rights of the plaintiff.To recover punitive damages under his trespass claim, BELL must show that the defendants acted with actual malice, involving an intentional wrongdoing, or that such conduct amounted to a “wanton, willful or reckless disregard of plaintiff's rights.”3. Defendants' Proposed Special Verdict Form[Omitted: Count One and Count |
| Two—Discrimination]1. . | Two—Discrimination]1. PJI 3:6. |
| Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress (modified: special verdict form drafted on basis of pattern jury instruction)Question 10. Did plaintiff prove that HELMSLEY conducted herself toward BELL in a manner so shocking and outrageous that it exceeded all reasonable bounds of human decency?————— YES ————— NOIf the answer is no, proceed directly to question 13.Question 11. Did BELL prove with medical evidence that HELMSLEY's conduct caused him severe emotional distress?————— YES ————— NOIf the answer is no, proceed directly to question 13.Author's Comment: Although | Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress (modified: special verdict form drafted on basis of pattern jury instruction)Question 10. Did plaintiff prove that HELMSLEY conducted herself toward BELL in a manner so shocking and outrageous that it exceeded all reasonable bounds of human decency?————— YES ————— NOIf the answer is no, proceed directly to question 13.Question 11. Did BELL prove with medical evidence that HELMSLEY's conduct caused him severe emotional distress?————— YES ————— NOIf the answer is no, proceed directly to question 13.Author's Comment: Although |
| , | PJI 3:6, the |
| indicated basis of the special verdict form, does not mention medical evidence, the Comment states that “[a] claim of severe emotional distress must be supported by medical evidence.” 2A | indicated basis of the special verdict form, does not mention medical evidence, the Comment states that “[a] claim of severe emotional distress must be supported by medical evidence.” 2A |
| , | NY PJI2d 3:6, |
| at 73 (2018) (citations omitted).Question 12. Did HELMSLEY act with the desire to cause BELL severe emotional distress?————— YES ————— | at 73 (2018) (citations omitted).Question 12. Did HELMSLEY act with the desire to cause BELL severe emotional distress?————— YES ————— |
| NO2. . | NO2. PJI 3:23B. |
| SV—SPECIAL VERDICT FORM (modified)Question 13. Did HELMSLEY make statements about BELL that went beyond an expression of dissatisfaction with BELL's work, but rather expressed that BELL was incompetent in his profession?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 14. Were the statements statements of fact, rather than opinion?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 15. Were the statements communicated by HELMSLEY to someone other than the plaintiff?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 16. Were the statements false?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 17. Did HELMSLEY make the statement solely because of malice toward the plaintiff?————— YES ————— | SV—SPECIAL VERDICT FORM (modified)Question 13. Did HELMSLEY make statements about BELL that went beyond an expression of dissatisfaction with BELL's work, but rather expressed that BELL was incompetent in his profession?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 14. Were the statements statements of fact, rather than opinion?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 15. Were the statements communicated by HELMSLEY to someone other than the plaintiff?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 16. Were the statements false?————— YES ————— NOIf the answer is no, proceed directly to question 18.Question 17. Did HELMSLEY make the statement solely because of malice toward the plaintiff?————— YES ————— |
| NO3. . | NO3. PJI 3:23E. |
| SV—SPECIAL VERDICT FORM (modified)Question 18. Did the statement have a tendency to expose plaintiff to public hatred, contempt, ridicule or disgrace?————— YES ————— NOIf the answer is no, proceed directly to question 22.Question 19. Was the statement about the plaintiff?————— YES ————— NOIf the answer is no, proceed directly to question 22.Question 20. Did HELMSLEY communicate the statement to someone other than the plaintiff?————— YES ————— NOIf the answer is no, proceed directly to question 22.Question 21. Did BELL prove that the statement caused him financial loss?————— YES ————— | SV—SPECIAL VERDICT FORM (modified)Question 18. Did the statement have a tendency to expose plaintiff to public hatred, contempt, ridicule or disgrace?————— YES ————— NOIf the answer is no, proceed directly to question 22.Question 19. Was the statement about the plaintiff?————— YES ————— NOIf the answer is no, proceed directly to question 22.Question 20. Did HELMSLEY communicate the statement to someone other than the plaintiff?————— YES ————— NOIf the answer is no, proceed directly to question 22.Question 21. Did BELL prove that the statement caused him financial loss?————— YES ————— |
| NO4. . | NO4. PJI 3:8. |
| Intentional Torts—Interference with Person or Property—Trespass to Land (modified: special verdict form drafted on basis of pattern jury instruction)Question 22. Did Mrs. HELMSLEY cause anyone to enter BELL's residential suite or BELL's office (other than, for example, housekeeping or room service)?————— YES ————— NOIf the answer is no, proceed directly to | Intentional Torts—Interference with Person or Property—Trespass to Land (modified: special verdict form drafted on basis of pattern jury instruction)Question 22. Did Mrs. HELMSLEY cause anyone to enter BELL's residential suite or BELL's office (other than, for example, housekeeping or room service)?————— YES ————— NOIf the answer is no, proceed directly to |
| .Question | Section 2.Question |
| 23. As a result of the above, did someone actually enter BELL's residential suite or BELL's office?————— YES ————— NOII. Compensatory DamagesIf you have found for the defendants on all of the plaintiff's claims, do not complete this section. Stop here and report back to the Court.[Omitted: Actual Damages on Plaintiff's Discrimination | 23. As a result of the above, did someone actually enter BELL's residential suite or BELL's office?————— YES ————— NOII. Compensatory DamagesIf you have found for the defendants on all of the plaintiff's claims, do not complete this section. Stop here and report back to the Court.[Omitted: Actual Damages on Plaintiff's Discrimination |
| Claims]5. . | Claims]5. PJI 3:6. |
| Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress (modified: special verdict form drafted on basis of pattern jury instruction)35. If you answered “yes” to questions 10, 11 and 12, then continue with this question. Otherwise, proceed directly to question 36. Calculate the amount of actual damages to which the plaintiff is entitled under this claim and enter that number here.Amount: $ | Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress (modified: special verdict form drafted on basis of pattern jury instruction)35. If you answered “yes” to questions 10, 11 and 12, then continue with this question. Otherwise, proceed directly to question 36. Calculate the amount of actual damages to which the plaintiff is entitled under this claim and enter that number here.Amount: $ |
| —————6. . | —————6. PJI 3:29. |
| SV—SPECIAL VERDICT FORM (modified)36. If you answered “yes” to questions 13, 14, 15, 16 and 17, then continue with this question. Otherwise, proceed directly to question 37. Calculate the amount of actual damages to which the plaintiff is entitled under this claim and enter that number here.Amount: $ | SV—SPECIAL VERDICT FORM (modified)36. If you answered “yes” to questions 13, 14, 15, 16 and 17, then continue with this question. Otherwise, proceed directly to question 37. Calculate the amount of actual damages to which the plaintiff is entitled under this claim and enter that number here.Amount: $ |
| —————7. . | —————7. PJI 3:23E. |
| SV—SPECIAL VERDICT FORM (modified)37. If you answered “yes” to questions 18, 19, 20 and 21, then continue with this question. Otherwise, proceed directly to question 38. Calculate the amount of actual damages to which the plaintiff is entitled under this claim. Remember that if BELL has not proven any actual damages under this claim, you may award him a nominal sum, such as one dollar. Enter the amount of damages here.Amount: $ —————Author's Comment: One can't help but wonder if the proposed friendly reminders that the jury could award plaintiff one dollar in damages made it into the final special verdict | SV—SPECIAL VERDICT FORM (modified)37. If you answered “yes” to questions 18, 19, 20 and 21, then continue with this question. Otherwise, proceed directly to question 38. Calculate the amount of actual damages to which the plaintiff is entitled under this claim. Remember that if BELL has not proven any actual damages under this claim, you may award him a nominal sum, such as one dollar. Enter the amount of damages here.Amount: $ —————Author's Comment: One can't help but wonder if the proposed friendly reminders that the jury could award plaintiff one dollar in damages made it into the final special verdict |
| form.8. . | form.8. PJI 3:8. |
| Intentional Torts—Interference with Person or Property—Trespass to Land (modified: special verdict form drafted on basis of pattern jury instruction)38. If you answered “yes” to questions 22 and 23, continue with this question. Otherwise, proceed directly to question 39. Calculate the amount of actual damages to which the plaintiff is entitled this claim. Remember that if BELL has not proven any actual damages under this claim, you may award him a nominal sum, such as one dollar. Enter the amount of damages here.Amount: $ —————III. Punitive | Intentional Torts—Interference with Person or Property—Trespass to Land (modified: special verdict form drafted on basis of pattern jury instruction)38. If you answered “yes” to questions 22 and 23, continue with this question. Otherwise, proceed directly to question 39. Calculate the amount of actual damages to which the plaintiff is entitled this claim. Remember that if BELL has not proven any actual damages under this claim, you may award him a nominal sum, such as one dollar. Enter the amount of damages here.Amount: $ —————III. Punitive |
| Damages9. . | Damages9. PJI 3:30. |
| SV—SPECIAL VERDICT | SV—SPECIAL VERDICT |
| FORM10. . | FORM10. PJI 3:30A. |
| SV—SUPPLEMENTARY SPECIAL VERDICT FORM (modified to recognize the punitive damages may be awarded for the plaintiff's claims of defamation, trespass, intentional infliction of emotional distress, and discrimination claims)If you have found for defendants on all of plaintiff's discrimination, hostile work environment, intentional infliction of emotional distress, plain slander, slander per se and trespass claims, do not complete this section. Stop here and report back to the Court.Question 39. Have you found that BELL engaged in any kind of misconduct (such as resume fraud, drug use and/or possession on defendants' premises or during working hours, or abusing his on-the-job “perks”) that would preclude him from recovering punitive damages?————— YES ————— NOAuthor's Comment: Tucking into the proposed special verdict form this parenthetical reminder of defendant's allegations of wrongdoing by plaintiff must have been helpful in preparing for trial and putting the client in the right frame of mind; but did it make it into the actual verdict form?If the answer is yes, stop here and report back to the Court.[Omitted Counts One and Two: Discrimination Based on Sexual Orientation]Question 42. If you found that BELL is entitled to actual damages in connection with his intentional infliction of emotional distress claim, answer this question. Otherwise, proceed to question 44. Have you found that defendants acted with an evil, malicious motive?————— YES ————— NOQuestion 43. Enter the amount of punitive damages to which BELL is entitled in connection with his intentional infliction of emotional distress claim. Remember that this award must be proportional to your actual damages award on this claim.Amount: $ —————Question 44. If you found that BELL is entitled to actual damages in connection with his plain slander and slander per se claims, answer this question. Otherwise, proceed to question 46. Did BELL prove that HELMSLEY made the statements with hatred, ill will or spite or engaged in conduct that was malicious, wanton, reckless or in willful disregard of BELL's rights?————— YES ————— NOQuestion 45. Enter the amount of punitive damages to which BELL is entitled in connection with his plain slander and slander per se claims. Remember that this award must be proportional to your actual damages award on these claims.Amount: $ —————Author's Comment: The proposed reminders that punitive damages must be proportional to actual damages reflect the position taken in the general instruction on punitive damages, | SV—SUPPLEMENTARY SPECIAL VERDICT FORM (modified to recognize the punitive damages may be awarded for the plaintiff's claims of defamation, trespass, intentional infliction of emotional distress, and discrimination claims)If you have found for defendants on all of plaintiff's discrimination, hostile work environment, intentional infliction of emotional distress, plain slander, slander per se and trespass claims, do not complete this section. Stop here and report back to the Court.Question 39. Have you found that BELL engaged in any kind of misconduct (such as resume fraud, drug use and/or possession on defendants' premises or during working hours, or abusing his on-the-job “perks”) that would preclude him from recovering punitive damages?————— YES ————— NOAuthor's Comment: Tucking into the proposed special verdict form this parenthetical reminder of defendant's allegations of wrongdoing by plaintiff must have been helpful in preparing for trial and putting the client in the right frame of mind; but did it make it into the actual verdict form?If the answer is yes, stop here and report back to the Court.[Omitted Counts One and Two: Discrimination Based on Sexual Orientation]Question 42. If you found that BELL is entitled to actual damages in connection with his intentional infliction of emotional distress claim, answer this question. Otherwise, proceed to question 44. Have you found that defendants acted with an evil, malicious motive?————— YES ————— NOQuestion 43. Enter the amount of punitive damages to which BELL is entitled in connection with his intentional infliction of emotional distress claim. Remember that this award must be proportional to your actual damages award on this claim.Amount: $ —————Question 44. If you found that BELL is entitled to actual damages in connection with his plain slander and slander per se claims, answer this question. Otherwise, proceed to question 46. Did BELL prove that HELMSLEY made the statements with hatred, ill will or spite or engaged in conduct that was malicious, wanton, reckless or in willful disregard of BELL's rights?————— YES ————— NOQuestion 45. Enter the amount of punitive damages to which BELL is entitled in connection with his plain slander and slander per se claims. Remember that this award must be proportional to your actual damages award on these claims.Amount: $ —————Author's Comment: The proposed reminders that punitive damages must be proportional to actual damages reflect the position taken in the general instruction on punitive damages, |
| , “ | PJI 2:278, “The |
| amount of punitive damages that you award must be both reasonable and proportionate to the actual and potential harm suffered by AB, and to the compensatory damages you awarded AB.” For a discussion of the pertinent due process considerations, see 1B | amount of punitive damages that you award must be both reasonable and proportionate to the actual and potential harm suffered by AB, and to the compensatory damages you awarded AB.” For a discussion of the pertinent due process considerations, see 1B |
| , | NY PJI3d 2:278, |
| at 886 to 890 (2018).Question 46. If you found that BELL is entitled to actual damages in connection with his trespass claim, answer this question. Otherwise, stop here and report to the Court. Did BELL prove that defendants acted with actual malice, involving an intentional wrongdoing, or that such conduct amounted to a wanton, willful or reckless disregard of BELL's rights?————— YES ————— NOIf the answer is no, stop here and report to the Court.Question 47. Enter the amount of punitive damages to which BELL is entitled in connection with his trespass claim. Remember that this award must be proportional to your actual damages award on this claim.Amount: $ —————Dated: ——————————ForepersonDated: New York, New York[date]Respectfully submitted,[name of firm]C. Case Documents Available on Westlaw1.Jury Instruction, 2002 WL 32955477Jury Instruction, 2002 WL 32955478Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for an Award of Reasonable Attorney's Fees and Costs and an Award of Pre-verdict Interest2005 WL 5027540Memorandum of Law in Support of Defendants' Pre-Trial Motions (1) in Limine and (2) in Support of Certain Jury Instructions, 2003 WL 25431181Defendants' Opposition to Plaintiff's Motion in Limine, 2003 WL 25431182Plaintiff's Amended and Supplemental Proposed Jury Instructions and Proposed Verdict Sheet, 2003 WL 24177110Memorandum of Law in Opposition to Defendants' Motion to Set Aside the Jury Verdicts, 2003 WL 24175855Memorandum of Law in Opposition to Defendants' Motion to Set Aside the Jury Verdicts, 2003 WL 25431178Memorandum of Law in Support of Plaintiff's Motion for an Award of Reasonable Attorney's Fees and Costs and an Award of Pre-verdict Interest, 2003 WL 25431180Memorandum of Law in Support of Defendants' Post-Trial Motion Pursuant to | at 886 to 890 (2018).Question 46. If you found that BELL is entitled to actual damages in connection with his trespass claim, answer this question. Otherwise, stop here and report to the Court. Did BELL prove that defendants acted with actual malice, involving an intentional wrongdoing, or that such conduct amounted to a wanton, willful or reckless disregard of BELL's rights?————— YES ————— NOIf the answer is no, stop here and report to the Court.Question 47. Enter the amount of punitive damages to which BELL is entitled in connection with his trespass claim. Remember that this award must be proportional to your actual damages award on this claim.Amount: $ —————Dated: ——————————ForepersonDated: New York, New York[date]Respectfully submitted,[name of firm]C. Case Documents Available on Westlaw1.Jury Instruction, 2002 WL 32955477Jury Instruction, 2002 WL 32955478Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for an Award of Reasonable Attorney's Fees and Costs and an Award of Pre-verdict Interest2005 WL 5027540Memorandum of Law in Support of Defendants' Pre-Trial Motions (1) in Limine and (2) in Support of Certain Jury Instructions, 2003 WL 25431181Defendants' Opposition to Plaintiff's Motion in Limine, 2003 WL 25431182Plaintiff's Amended and Supplemental Proposed Jury Instructions and Proposed Verdict Sheet, 2003 WL 24177110Memorandum of Law in Opposition to Defendants' Motion to Set Aside the Jury Verdicts, 2003 WL 24175855Memorandum of Law in Opposition to Defendants' Motion to Set Aside the Jury Verdicts, 2003 WL 25431178Memorandum of Law in Support of Plaintiff's Motion for an Award of Reasonable Attorney's Fees and Costs and an Award of Pre-verdict Interest, 2003 WL 25431180Memorandum of Law in Support of Defendants' Post-Trial Motion Pursuant to |
| , | CPLR 4404, 2003 |
| WL 25431183Post Trial Motion | WL 25431183Post Trial Motion |
| (), | (CPLR 4404), |
| 2003 WL 24175847Memorandum of Law in Support of Defendant's Motion to Set Aside the Jury's Verdict on Economic Damages and Vacate the Award of Punitive Damages, 2003 WL 24175857Memorandum of Law in Support of Defendant's Motion to Set Aside the Jury's Verdict on Economic Damages and Vacate the Award of Punitive Damages, 2003 WL 25431179Verdict and Settlement Summary, 2003 WL 21431591Reply Affirmation, 2003 WL 24175856Affirmation in Opposition, 2003 WL 24175858Memorandum of Law in Support of Defendants' Motion for Summary Judgment (1) Dismissing Any Claim for Front-Pay After the Date of Plaintiff's Rejection of Defendants' Unconditional Offer of Reinstatement, (2) Dismissing Any Claim for Front-Pay After the Date of Defendants' Discovery of Evidence of Plaintiff's Resume Fraud in Obtaining Employment and Illegal Drug Use While on Duty in Defendants' Employ, and (3) Dismissing the Third, Fourth, Fifth and Sixth Causes of Action, 2002 WL 34105296Defendants' Proposed Special Verdict Form, 2002 WL 32955478Affidavit of James A. Brunetti, 2002 WL 33962790Affirmation in Opposition to Plaintiff's Motion to Compel and in Support of Defendants' Cross-Motion for a Protective Order Confirming Its Priority of Deposition, 2001 WL 34820585Reply Affirmation, 2001 WL 34820587Memorandum of Law in Support of Order to Show Cause Compelling, and Establishing the Order of, Disclosure, 2001 WL 35929697Trial Transcript, 2001 WL 34820550Transcript, | 2003 WL 24175847Memorandum of Law in Support of Defendant's Motion to Set Aside the Jury's Verdict on Economic Damages and Vacate the Award of Punitive Damages, 2003 WL 24175857Memorandum of Law in Support of Defendant's Motion to Set Aside the Jury's Verdict on Economic Damages and Vacate the Award of Punitive Damages, 2003 WL 25431179Verdict and Settlement Summary, 2003 WL 21431591Reply Affirmation, 2003 WL 24175856Affirmation in Opposition, 2003 WL 24175858Memorandum of Law in Support of Defendants' Motion for Summary Judgment (1) Dismissing Any Claim for Front-Pay After the Date of Plaintiff's Rejection of Defendants' Unconditional Offer of Reinstatement, (2) Dismissing Any Claim for Front-Pay After the Date of Defendants' Discovery of Evidence of Plaintiff's Resume Fraud in Obtaining Employment and Illegal Drug Use While on Duty in Defendants' Employ, and (3) Dismissing the Third, Fourth, Fifth and Sixth Causes of Action, 2002 WL 34105296Defendants' Proposed Special Verdict Form, 2002 WL 32955478Affidavit of James A. Brunetti, 2002 WL 33962790Affirmation in Opposition to Plaintiff's Motion to Compel and in Support of Defendants' Cross-Motion for a Protective Order Confirming Its Priority of Deposition, 2001 WL 34820585Reply Affirmation, 2001 WL 34820587Memorandum of Law in Support of Order to Show Cause Compelling, and Establishing the Order of, Disclosure, 2001 WL 35929697Trial Transcript, 2001 WL 34820550Transcript, |
| 2.Sample | 2001 WL 349056722.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: defamation libel slander discrimin! /s gay orientationD. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: defamation libel slander discrimin! /s gay orientationD. Research References1.Key |
| Numbers | NumbersDamages 57.20 |
| to | to |
| 57.22Libel and Slander 55 |
| to | to |
| 61Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 11:4 False | 7:355§ 11:4 False |
| arrest: one plaintiff, one defendantA. BackgroundType of Case: False arrestType of Injury: Damages for false arrestCase Name: Peros v. County of SuffolkCourt: Supreme Court of New YorkJudge: John J. DunnDocket Number: 022916-98Verdict Date: November 26, 2001Outcome: Award of $10,000 general damages and $12,000 punitive damages for false arrest. The punitive damages were later vacated on appeal.Brief Summary of Facts: The plaintiff sued alleging a cause of action for false arrest against the County of Suffolk and the Suffolk County Police Department, and a cause of action (later dismissed) for malicious prosecution against the Suffolk County District Attorney, arising from a warrantless arrest at the plaintiff's apartment for selling marijuana at a movie theatre, evidence of which was purportedly captured on videotape. The plaintiff's indictment was dismissed by the district attorney in the interest of justice after conceding—as the plaintiff had contended earlier as an alibi—that he was out of the country at the time of the incidents and was mistaken for a brother with a similar appearance. The defendant insisted that the indictment was valid and provided probable cause for the arrest.B. Jury Instructions Proposed By Defendant County of | arrest: one plaintiff, one defendantA. BackgroundType of Case: False arrestType of Injury: Damages for false arrestCase Name: Peros v. County of SuffolkCourt: Supreme Court of New YorkJudge: John J. DunnDocket Number: 022916-98Verdict Date: November 26, 2001Outcome: Award of $10,000 general damages and $12,000 punitive damages for false arrest. The punitive damages were later vacated on appeal.Brief Summary of Facts: The plaintiff sued alleging a cause of action for false arrest against the County of Suffolk and the Suffolk County Police Department, and a cause of action (later dismissed) for malicious prosecution against the Suffolk County District Attorney, arising from a warrantless arrest at the plaintiff's apartment for selling marijuana at a movie theatre, evidence of which was purportedly captured on videotape. The plaintiff's indictment was dismissed by the district attorney in the interest of justice after conceding—as the plaintiff had contended earlier as an alibi—that he was out of the country at the time of the incidents and was mistaken for a brother with a similar appearance. The defendant insisted that the indictment was valid and provided probable cause for the arrest.B. Jury Instructions Proposed By Defendant County of |
| Suffolk1. . Introduction2. . Review3. . | Suffolk1. PJI 1:20. Introduction2. PJI 1:21. Review3. PJI 1:22. |
| Falsus In | Falsus In |
| Uno4. . | Uno4. PJI 1:61. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:24. |
| Return to | Return to |
| Courtroom6. . | Courtroom6. PJI 1:25. |
| Testimony and | Testimony and |
| Exhibits7. . | Exhibits7. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict8. . | Verdict8. PJI 1:27. |
| No | No |
| sympathy9. . Alternates10. . | sympathy9. PJI 1:29. Alternates10. PJI 1:66. |
| Evidence limited purpose: Credibility of | Evidence limited purpose: Credibility of |
| Non-Party11. . | Non-Party11. PJI 1:70. |
| Circumstantial | Circumstantial |
| Evidence12. . | Evidence12. PJI 1:78. |
| Stipulation of | Stipulation of |
| Facts13. . | Facts13. PJI 1:91. |
| Interested | Interested |
| Witness14. . | Witness14. PJI 1:92. |
| Interested Witnesses—Employee of | Interested Witnesses—Employee of |
| Party15. . | Party15. PJI 1:94. |
| Use of Pre-trial Deposition upon | Use of Pre-trial Deposition upon |
| Trial16. . | Trial16. PJI 1:97. |
| Special | Special |
| Verdicts17. . | Verdicts17. PJI 1:75. |
| Missing witness (modified for a special or personal relationship (father, brother and aunt), as reflected in LaLima v. Fath, 36 AD2d 923; 320 NYS2d 882 (1971); 80 ALR4th 337; | Missing witness (modified for a special or personal relationship (father, brother and aunt), as reflected in LaLima v. Fath, 36 AD2d 923; 320 NYS2d 882 (1971); 80 ALR4th 337; |
| )Author's | 79 ALR4th 779)Author's |
| Comment: When citing an ALR annotation in a proposed jury charge, it would be helpful to give its title. The two cited here are: A. Stephens, Adverse presumption or inference based on party's failure to produce or examine family member other than spouse, 80 ALR4th 337; and A. Stephens, Adverse presumption or inference based on party's failure to produce or examine friend, 79 ALR4th 779.ALR annotations are often cited in NY PJI Comments. These two are indeed cited at 1A | Comment: When citing an ALR annotation in a proposed jury charge, it would be helpful to give its title. The two cited here are: A. Stephens, Adverse presumption or inference based on party's failure to produce or examine family member other than spouse, 80 ALR4th 337; and A. Stephens, Adverse presumption or inference based on party's failure to produce or examine friend, 79 ALR4th 779.ALR annotations are often cited in NY PJI Comments. These two are indeed cited at 1A |
| , | NY PJI3d 1:75, |
| at 117 (2018). Courts now commonly identify both author and title when citing ALR | at 117 (2018). Courts now commonly identify both author and title when citing ALR |
| annotations.18. . | annotations.18. PJI 3:4. |
| Intentional Torts—Interference with Person or Property—Battery Committed in Performance of Public Duty or Authority (modified to reflect false arrest, by adding to first paragraph of charge the fourth element of a false arrest: And the arrest, or custody, is not otherwise privileged. An arrest is privileged and lawful if there is probable cause (reasonable cause, reasonable grounds) to make the arrest as probable cause provides the justification for the | Intentional Torts—Interference with Person or Property—Battery Committed in Performance of Public Duty or Authority (modified to reflect false arrest, by adding to first paragraph of charge the fourth element of a false arrest: And the arrest, or custody, is not otherwise privileged. An arrest is privileged and lawful if there is probable cause (reasonable cause, reasonable grounds) to make the arrest as probable cause provides the justification for the |
| arrest)19. . | arrest)19. PJI 3:5. |
| Intentional Torts—Interference with Person or Property—False Imprisonmentmodified: used as source to create special verdict form.SPECIAL VERDICTDid Detective Castano have probable cause to make the arrest of Renato Peros on October 11, 1997?At the time of arrest on October 11, 1997, did Detective Castano have a good faith belief that Renato Peros was the person that sold marijuana to Detective Castano?Plaintiff only entitled to recover for period of time in custody from moment of arrest on October 11, 1997, until arraignment on October 11, | Intentional Torts—Interference with Person or Property—False Imprisonmentmodified: used as source to create special verdict form.SPECIAL VERDICTDid Detective Castano have probable cause to make the arrest of Renato Peros on October 11, 1997?At the time of arrest on October 11, 1997, did Detective Castano have a good faith belief that Renato Peros was the person that sold marijuana to Detective Castano?Plaintiff only entitled to recover for period of time in custody from moment of arrest on October 11, 1997, until arraignment on October 11, |
| 199720. . | 199720. PJI 2:277. |
| Damages-General Damages (modified to reflect that counsel fees are irrelevant subsequent to the arraignment of October 11, | Damages-General Damages (modified to reflect that counsel fees are irrelevant subsequent to the arraignment of October 11, |
| 1997)21. . Conclusion22. . | 1997)21. PJI 1:28. Conclusion22. PJI 1:29. |
| Alternate JurorsC. Case Documents Available on Westlaw1.Jury Instruction, 2001 WL 34829894Opinion Affirming Judgment on Jury Verdict, Peros v. Suffolk County, 303 A.D.2d 666, 756 N.Y.S.2d 783 (N.Y.A.D. 2 Dept. 2003)Appellate Brief, Reply Brief for Defendants-Appellants, 2002 WL 32377893Appellate Brief, Brief for Plaintiff-Respondent, 2002 WL 32377892Appellate Brief, Brief for Defendants-Appellants, 2002 WL 323778892.Sample Westlaw Query For Trial Court Documents in Similar Cases: “false arrest” “false imprisonment” “malicious prosecution”D. Research References1.Key | Alternate JurorsC. Case Documents Available on Westlaw1.Jury Instruction, 2001 WL 34829894Opinion Affirming Judgment on Jury Verdict, Peros v. Suffolk County, 303 A.D.2d 666, 756 N.Y.S.2d 783 (N.Y.A.D. 2 Dept. 2003)Appellate Brief, Reply Brief for Defendants-Appellants, 2002 WL 32377893Appellate Brief, Brief for Plaintiff-Respondent, 2002 WL 32377892Appellate Brief, Brief for Defendants-Appellants, 2002 WL 323778892.Sample Westlaw Query For Trial Court Documents in Similar Cases: “false arrest” “false imprisonment” “malicious prosecution”D. Research References1.Key |
| Numbers , , , | NumbersFalse Imprisonment 2, 10, 11, 13Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 11:5 Battery | 7:355§ 11:5 Battery |
| in performance of duty: one plaintiff, five defendantsA. BackgroundType of Case: Battery in performance of dutyType of Injury: Damages for wrongful deathCase Name: Arif Ahmeti, as Administrator of Estate, Bekim Ahmeti, Deceased, and Arif Ahmeti, Individually v. The City Of New York, The New York City Police Department, Lieutenant Michael Herer, Police Officer John Dalton, Police Officer Robert Schmidgall, Police Officer Mary Murray, Defendants.Court: Supreme Court of New YorkJudge: Kibbie F. PayneDocket Number: 111394/94Verdict Date: February 8, 2001Outcome: Verdict for defendantBrief Summary of Facts: The plaintiff sued for battery under state law and alleged a violation of civil rights under federal law, claiming that the defendants, in the process of arresting or stopping the deceased, shot him four times without justification, causing his death. The defendants insisted that the deceased was attempting to escape, turned and pointed a gun at the defendants, and that the defendants believed that they had a reasonable basis to use deadly force under the circumstances. The defendant contended that although the decedent was running away from them, he turned and shot at them with a gun. The plaintiff, however, claimed that the gun was planted by a police officer.B. Jury Instructions1. Instructions Proposed By | in performance of duty: one plaintiff, five defendantsA. BackgroundType of Case: Battery in performance of dutyType of Injury: Damages for wrongful deathCase Name: Arif Ahmeti, as Administrator of Estate, Bekim Ahmeti, Deceased, and Arif Ahmeti, Individually v. The City Of New York, The New York City Police Department, Lieutenant Michael Herer, Police Officer John Dalton, Police Officer Robert Schmidgall, Police Officer Mary Murray, Defendants.Court: Supreme Court of New YorkJudge: Kibbie F. PayneDocket Number: 111394/94Verdict Date: February 8, 2001Outcome: Verdict for defendantBrief Summary of Facts: The plaintiff sued for battery under state law and alleged a violation of civil rights under federal law, claiming that the defendants, in the process of arresting or stopping the deceased, shot him four times without justification, causing his death. The defendants insisted that the deceased was attempting to escape, turned and pointed a gun at the defendants, and that the defendants believed that they had a reasonable basis to use deadly force under the circumstances. The defendant contended that although the decedent was running away from them, he turned and shot at them with a gun. The plaintiff, however, claimed that the gun was planted by a police officer.B. Jury Instructions1. Instructions Proposed By |
| Plaintiff1. . | Plaintiff1. PJI 12:7. |
| Credibility of | Credibility of |
| Witnesses2. . | Witnesses2. PJI 12:8. |
| Bias of Officials as | Bias of Officials as |
| Witnesses3. . | Witnesses3. PJI 1:70. |
| Circumstantial Evidence(Federal jury instruction | Circumstantial Evidence(Federal jury instruction |
| omitted)4. . | omitted)4. PJI 1:77.1. |
| Failure to Produce Documents(Federal jury instruction | Failure to Produce Documents(Federal jury instruction |
| omitted)5. . Damages—General6. . | omitted)5. PJI 2:227. Damages—General6. PJI 2:280. |
| Injury and Pain and | Injury and Pain and |
| Suffering7. .280.1. | Suffering7. PJI 2.280.1. |
| Injury and Pain and | Injury and Pain and |
| Suffering8. . | Suffering8. PJI 2:281. |
| Damages—Personal Injury—Life Expectancy | Damages—Personal Injury—Life Expectancy |
| Tables9. .284. | Tables9. PJI 2.284. |
| Damages—Shock and Fright and Physical Consequences | Damages—Shock and Fright and Physical Consequences |
| Thereof10. . | Thereof10. PJI 2:285. |
| Damages—Expenses | Damages—Expenses |
| Incurred11. . | Incurred11. PJI 2:278. |
| Damages—Punitive Damages(Federal jury instruction | Damages—Punitive Damages(Federal jury instruction |
| omitted)12. . | omitted)12. PJI 2:15. |
| Defendants Having Special Knowledge Common Law Standard Of Care—Defendants Having Special KnowledgeOne who, as defendant Police officers in this case have, special training and experience in law enforcement, have a duty, while acting in their capacity toward others who rely upon special skills, to exercise that skill and degree of care which others in the same capacity in the community would ordinarily exercise under the same circumstances. If you find that defendants did exercise such skill and degree of care, you must find them free of negligence regardless of the result. If you find that defendants failed to exercise that skill and degree of care which other peace officers in the community would normally have exercised under the same circumstances, you will find defendants | Defendants Having Special Knowledge Common Law Standard Of Care—Defendants Having Special KnowledgeOne who, as defendant Police officers in this case have, special training and experience in law enforcement, have a duty, while acting in their capacity toward others who rely upon special skills, to exercise that skill and degree of care which others in the same capacity in the community would ordinarily exercise under the same circumstances. If you find that defendants did exercise such skill and degree of care, you must find them free of negligence regardless of the result. If you find that defendants failed to exercise that skill and degree of care which other peace officers in the community would normally have exercised under the same circumstances, you will find defendants |
| negligent.13. . | negligent.13. PJI 3:4. |
| Battery Committed In The Performance of DutyOne who seeks to make a lawful arrest has the right to use as much force as he reasonably believes necessary in order to make the arrest, prevent such person's escape and can be held liable only if no force was necessary the force used was excessivePlaintiff claims that defendants in process of arresting or stopping the deceased without justification shot the deceased four times causing his death. Defendants admit Shooting the deceased but say that the deceased was attempting to escape, turned and pointed a gun at the defendants an that defendants believed that they had a reasonable basis to use deadly force under the circumstances. Taking into consideration all of the circumstances existing at the time and place of the incident, if you find that it was not reasonable for defendant to believe that plaintiff was attempting to escape but the defendants were not justified in using deadly force you will find for the plaintiff. If, however, you find that defendants reasonably believed that plaintiff was attempting to escape, and that defendants were justified in using deadly force to the extent that defendants reasonably believed it necessary to prevent the escape, you must then decide whether the force used as reasonably believed by defendants to be necessary. In making that decision, you must take into consideration all of the circumstances confronting defendants at the time and place of the incident, including whether you determine that as defendants contend that the deceased was armed with a gun that he pointed at them. If you determine that the deceased threatened the use of a gun on the defendants then the use of deadly force is reasonable and you must find for the defendants.(Federal jury instruction | Battery Committed In The Performance of DutyOne who seeks to make a lawful arrest has the right to use as much force as he reasonably believes necessary in order to make the arrest, prevent such person's escape and can be held liable only if no force was necessary the force used was excessivePlaintiff claims that defendants in process of arresting or stopping the deceased without justification shot the deceased four times causing his death. Defendants admit Shooting the deceased but say that the deceased was attempting to escape, turned and pointed a gun at the defendants an that defendants believed that they had a reasonable basis to use deadly force under the circumstances. Taking into consideration all of the circumstances existing at the time and place of the incident, if you find that it was not reasonable for defendant to believe that plaintiff was attempting to escape but the defendants were not justified in using deadly force you will find for the plaintiff. If, however, you find that defendants reasonably believed that plaintiff was attempting to escape, and that defendants were justified in using deadly force to the extent that defendants reasonably believed it necessary to prevent the escape, you must then decide whether the force used as reasonably believed by defendants to be necessary. In making that decision, you must take into consideration all of the circumstances confronting defendants at the time and place of the incident, including whether you determine that as defendants contend that the deceased was armed with a gun that he pointed at them. If you determine that the deceased threatened the use of a gun on the defendants then the use of deadly force is reasonable and you must find for the defendants.(Federal jury instruction |
| omitted)14. . | omitted)14. PJI 2:277. |
| Damages—GeneralMy charge to you on the law of damages must not be taken as an intimation that you should find for the plaintiff. It is for you to decide on the evidence presented and the rules of the law I have given to you, whether plaintiff is entitled to recover from the defendant. If you decide he is not so entitled, you need go no further. Only if you decide that plaintiff is so entitled will you consider the measure of damages.If you find that plaintiff is entitled to recover from the defendant for the death of Bekim Ahmeti, you must render a verdict in the sum of money which will justly and fairly compensate the plaintiff for all loss resulting from the death of Bekim | Damages—GeneralMy charge to you on the law of damages must not be taken as an intimation that you should find for the plaintiff. It is for you to decide on the evidence presented and the rules of the law I have given to you, whether plaintiff is entitled to recover from the defendant. If you decide he is not so entitled, you need go no further. Only if you decide that plaintiff is so entitled will you consider the measure of damages.If you find that plaintiff is entitled to recover from the defendant for the death of Bekim Ahmeti, you must render a verdict in the sum of money which will justly and fairly compensate the plaintiff for all loss resulting from the death of Bekim |
| Ahmeti.15. . | Ahmeti.15. PJI 2:280. |
| Injury And Pain And SufferingIf you decide for plaintiff on the question of liability you must include in your verdict an award of money for conscious pain and suffering caused by defendant.Conscious pain and suffering means pain and suffering of which there was some level of awareness by the deceased.Plaintiff is entitled to recover a sum of money which will justly and fairly compensates him for the conscious pain and suffering that occurred from the time of the shooting until he died or lost consciousness.In this connection you will recall that the testimony presented indicated that the deceased was shot at 5:00 A.M. and died at 8:00 | Injury And Pain And SufferingIf you decide for plaintiff on the question of liability you must include in your verdict an award of money for conscious pain and suffering caused by defendant.Conscious pain and suffering means pain and suffering of which there was some level of awareness by the deceased.Plaintiff is entitled to recover a sum of money which will justly and fairly compensates him for the conscious pain and suffering that occurred from the time of the shooting until he died or lost consciousness.In this connection you will recall that the testimony presented indicated that the deceased was shot at 5:00 A.M. and died at 8:00 |
| A.M.16. . | A.M.16. PJI 2:285. |
| Damages—Personal Injury—Expenses IncurredIf you find that plaintiff, is entitled to recover the amount of reasonable expenditures for medicines and medical services, including physician’ charges, nursing charges, hospital expenses, x-ray charges and funeral costs expended on behalf of Bekim Ahmeti. If you find for the plaintiff, you will award him that amount which you find from the evidence to be the fair and reasonable value of the expenses necessarily incurred as a result of the shooting and death of Bekim | Damages—Personal Injury—Expenses IncurredIf you find that plaintiff, is entitled to recover the amount of reasonable expenditures for medicines and medical services, including physician’ charges, nursing charges, hospital expenses, x-ray charges and funeral costs expended on behalf of Bekim Ahmeti. If you find for the plaintiff, you will award him that amount which you find from the evidence to be the fair and reasonable value of the expenses necessarily incurred as a result of the shooting and death of Bekim |
| Ahmeti.17. . | Ahmeti.17. PJI 2:278. |
| Punitive DamagesIf you find that the defendants are liable for the death of plaintiff, Bekim Ahmeti, you must award plaintiff, the compensatory damages that he has proven. You also may award punitive damages, if plaintiff proves that defendants acted with malice or willfulness or with callous and reckless indifference to the rights of others when he acts in disregard of a high and excessive degree of danger about which he knows or which would be apparent to a reasonable person in his condition.If you determine that defendants conduct was so shocking and offensive as to justify an award of punitive damages, you may exercise your discretion to award those damages. In making any award of punitive damages, is to punish a defendant for shocking conduct, and to deter defendant and others from engaging in similar conduct in the future. The law does not require you to award punitive damages, however. If you decide to award punitive damages, you must use sound reason in setting the amount of the damages. The amount of an award of punitive damages must not reflect bias, prejudice, or sympathy toward any party. However, the amount can be as large as you believe necessary to fulfill the purposes of punitive damages. You may consider the financial resources of the defendant in fixing the amount of punitive damages [and you may impose punitive damages against one or more of the defendants, and not others, or against more than one defendants amounts].(Federal jury instruction | Punitive DamagesIf you find that the defendants are liable for the death of plaintiff, Bekim Ahmeti, you must award plaintiff, the compensatory damages that he has proven. You also may award punitive damages, if plaintiff proves that defendants acted with malice or willfulness or with callous and reckless indifference to the rights of others when he acts in disregard of a high and excessive degree of danger about which he knows or which would be apparent to a reasonable person in his condition.If you determine that defendants conduct was so shocking and offensive as to justify an award of punitive damages, you may exercise your discretion to award those damages. In making any award of punitive damages, is to punish a defendant for shocking conduct, and to deter defendant and others from engaging in similar conduct in the future. The law does not require you to award punitive damages, however. If you decide to award punitive damages, you must use sound reason in setting the amount of the damages. The amount of an award of punitive damages must not reflect bias, prejudice, or sympathy toward any party. However, the amount can be as large as you believe necessary to fulfill the purposes of punitive damages. You may consider the financial resources of the defendant in fixing the amount of punitive damages [and you may impose punitive damages against one or more of the defendants, and not others, or against more than one defendants amounts].(Federal jury instruction |
| omitted)18. . | omitted)18. PJI 1:70. |
| General Instruction—Circumstantial EvidenceFacts must be proved by evidence. Evidence includes the testimony of a witness concerning what the witness saw, heard or did. Evidence also includes writings, photographs, or physical objects which may be considered as proof of a fact. Evidence can be either direct or circumstantial. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence.Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. For example, let us suppose that a fact in dispute is whether I knocked over this water glass near a witness chair. If someone testified that he saw me knock over the glass, that is direct evidence that I knocked over the glass.Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists. For example, a witness testifies that he saw this water glass, looked up and saw me wiping water from my clothes and from papers on the bench. This testimony is not direct evidence that I knocked over the glass; it is circumstantial evidence which you could reasonably infer that I knocked over the glass.Those facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn. In the examples, even though the witness did not see me knock over the glass, if you believe (his/her) testimony, you could conclude that I did. Therefore, the circumstantial evidence, if accepted by you, allows you to conclude that the fact in dispute has been proved.In reaching your conclusion you may not guess or speculate. Suppose, for example, the witness testifies that the water glass was located equally distant from the court clerk and me. The witness states that he heard the breaking of glass and looked up to see both the clerk and me brushing water from our clothes. If you believe that testimony, you still could not decide on that evidence alone who knocked over the water glass. Where these are the only proved facts, it would be only a guess as to who did it. But, if the witness also testifies that he heard the court clerk say “I am sorry,” this additional evidence would allow you to decide who knocked over the water glass.(Federal jury instruction omitted)2. Instructions Proposed By Defendant—City of New | General Instruction—Circumstantial EvidenceFacts must be proved by evidence. Evidence includes the testimony of a witness concerning what the witness saw, heard or did. Evidence also includes writings, photographs, or physical objects which may be considered as proof of a fact. Evidence can be either direct or circumstantial. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence.Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. For example, let us suppose that a fact in dispute is whether I knocked over this water glass near a witness chair. If someone testified that he saw me knock over the glass, that is direct evidence that I knocked over the glass.Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists. For example, a witness testifies that he saw this water glass, looked up and saw me wiping water from my clothes and from papers on the bench. This testimony is not direct evidence that I knocked over the glass; it is circumstantial evidence which you could reasonably infer that I knocked over the glass.Those facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn. In the examples, even though the witness did not see me knock over the glass, if you believe (his/her) testimony, you could conclude that I did. Therefore, the circumstantial evidence, if accepted by you, allows you to conclude that the fact in dispute has been proved.In reaching your conclusion you may not guess or speculate. Suppose, for example, the witness testifies that the water glass was located equally distant from the court clerk and me. The witness states that he heard the breaking of glass and looked up to see both the clerk and me brushing water from our clothes. If you believe that testimony, you still could not decide on that evidence alone who knocked over the water glass. Where these are the only proved facts, it would be only a guess as to who did it. But, if the witness also testifies that he heard the court clerk say “I am sorry,” this additional evidence would allow you to decide who knocked over the water glass.(Federal jury instruction omitted)2. Instructions Proposed By Defendant—City of New |
| York. Introduction. | YorkPJI 1:20. IntroductionPJI 1:21. |
| Review of Principles | Review of Principles |
| Stated. | StatedPJI 1:22. |
| Falsus in | Falsus in |
| Uno. | UnoPJI 1:23. |
| Burden of Proof (also, see additional burden of proof request | Burden of Proof (also, see additional burden of proof request |
| below). | below)PJI 1:24. |
| Return to | Return to |
| Courtroom. | CourtroomPJI 1:25. |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits. | ExhibitsPJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict. | VerdictPJI 1:27. |
| Exclude | Exclude |
| Sympathy. Conclusion. | SympathyPJI 1:28. ConclusionPJI 1:29. |
| Alternate | Alternate |
| Jurors. | JurorsPJI 1:38. |
| Court's | Court's |
| Function. | FunctionPJI 1:39. |
| No Inference from | No Inference from |
| Rulings. | RulingsPJI 1:40. |
| Consider only Competent | Consider only Competent |
| Evidence. | EvidencePJI 1:41. |
| Weighing | Weighing |
| Testimony. | TestimonyPJI 1:90. |
| Expert | Expert |
| Witness. | WitnessPJI 1:91. |
| Interested | Interested |
| Witnesses—Plaintiffs. | Witnesses—PlaintiffsPJI 1:94. |
| Use of Pre Trial Deposition Upon | Use of Pre Trial Deposition Upon |
| Trial. | TrialPJI 1:97. |
| Verdict Written with | Verdict Written with |
| Interrogatories. | InterrogatoriesPJI 2:320. |
| Damages—Wrongful | Damages—Wrongful |
| Death. | DeathPJI 3:4. |
| Intentional Torts—Interference with Person or Property—Battery Committed in Performance of Public Duty or Authority (modified to reflect the defense that the use of deadly physical force was justified under the circumstances)The plaintiff alleges that the defendant officers. in the process of attempting to arrest Bekim Ahmeti, shot him without provocation, resulting in his death. The officers admit that they shot Bekim Ahmeti but assert that they reasonably believed that the use of deadly physical force was justified under the circumstances.Deadly physical force means physical force that, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury. There is no dispute that the defendant officers used deadly physical force in this case.Plaintiff has asserted claims under the common law of New York and under the federal civil rights law. The legal principles applicable to both claims in this case, which I will explain to you, are essentially the same.Under both state and federal law, a uniformed officer who seeks to make a lawful arrest may use as much force as he reasonably believes is necessary under the circumstances in order to make the arrest. The officer may be held liable for the consequences of a use of force only if the force used was excessive or unjustified in the situation presented.To prove that a particular use of force was excessive, a plaintiff must prove each element that he is required to prove in relation to the defendant officers' conduct by a preponderance of the evidence. As I previously explained, that means enough evidence to tip the scales in plaintiffs favor.1 If the evidence is even or if the defendants' evidence is stronger than the plaintiff s, you may not find for the plaintiff.Author's comment: Annotating the charge request with case citations, as here and below, is consistent with recommended practice.The way that works in this case is that, if the plaintiff has proved that a shooting occurred, and the defendants have responded that the shooting was justified, to be entitled to a verdict the plaintiff must have presented sufficient proof to convince you that the shooting was not justified. In order to avoid being held liable, it is not the responsibility of the defendant officers to prove that the shooting was justified.To prove that the shooting at issue was not justified, the plaintiff must convince you by a preponderance of the evidence that the defendant officers did not reasonably believe that it was necessary for them to fire at Bekim Ahmeti.2 That means that the plaintiff must prove that no reasonable officer would have believed that it was necessary to use deadly physical force in the circumstances presented.3 If officers of reasonable competence could disagree on the legality of the defendant officers' actions, the defendant officers cannot be found liable.4If you find that plaintiff proved that the defendant officers did not reasonably believe that the use of deadly physical force was necessary, meaning that no reasonable officer would have believed that it was, then you may find for plaintiff. If, however, you find that plaintiff failed to prove that the officers lacked a reasonable belief that the use of deadly physical force was necessary, and that a reasonable officer could not come to that conclusion, you should find for the defendant officers.In assessing what a reasonable officer would do under the circumstances that you find the evidence shows occurred in this case, you should consider the following. A police officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense, may use deadly physical force when and to the extent he reasonably believes that:the offense committed by such person was a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; orthe offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; orregardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.In deciding whether the plaintiff proved that the defendant officers' use of force was unjustified in this case, you must consider all of the proof relating to all of the pertinent circumstances at the time and place of the incident that you find is credible. The proof that the defendants contend is credible | Intentional Torts—Interference with Person or Property—Battery Committed in Performance of Public Duty or Authority (modified to reflect the defense that the use of deadly physical force was justified under the circumstances)The plaintiff alleges that the defendant officers. in the process of attempting to arrest Bekim Ahmeti, shot him without provocation, resulting in his death. The officers admit that they shot Bekim Ahmeti but assert that they reasonably believed that the use of deadly physical force was justified under the circumstances.Deadly physical force means physical force that, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury. There is no dispute that the defendant officers used deadly physical force in this case.Plaintiff has asserted claims under the common law of New York and under the federal civil rights law. The legal principles applicable to both claims in this case, which I will explain to you, are essentially the same.Under both state and federal law, a uniformed officer who seeks to make a lawful arrest may use as much force as he reasonably believes is necessary under the circumstances in order to make the arrest. The officer may be held liable for the consequences of a use of force only if the force used was excessive or unjustified in the situation presented.To prove that a particular use of force was excessive, a plaintiff must prove each element that he is required to prove in relation to the defendant officers' conduct by a preponderance of the evidence. As I previously explained, that means enough evidence to tip the scales in plaintiffs favor.1 If the evidence is even or if the defendants' evidence is stronger than the plaintiff s, you may not find for the plaintiff.Author's comment: Annotating the charge request with case citations, as here and below, is consistent with recommended practice.The way that works in this case is that, if the plaintiff has proved that a shooting occurred, and the defendants have responded that the shooting was justified, to be entitled to a verdict the plaintiff must have presented sufficient proof to convince you that the shooting was not justified. In order to avoid being held liable, it is not the responsibility of the defendant officers to prove that the shooting was justified.To prove that the shooting at issue was not justified, the plaintiff must convince you by a preponderance of the evidence that the defendant officers did not reasonably believe that it was necessary for them to fire at Bekim Ahmeti.2 That means that the plaintiff must prove that no reasonable officer would have believed that it was necessary to use deadly physical force in the circumstances presented.3 If officers of reasonable competence could disagree on the legality of the defendant officers' actions, the defendant officers cannot be found liable.4If you find that plaintiff proved that the defendant officers did not reasonably believe that the use of deadly physical force was necessary, meaning that no reasonable officer would have believed that it was, then you may find for plaintiff. If, however, you find that plaintiff failed to prove that the officers lacked a reasonable belief that the use of deadly physical force was necessary, and that a reasonable officer could not come to that conclusion, you should find for the defendant officers.In assessing what a reasonable officer would do under the circumstances that you find the evidence shows occurred in this case, you should consider the following. A police officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense, may use deadly physical force when and to the extent he reasonably believes that:the offense committed by such person was a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; orthe offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; orregardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.In deciding whether the plaintiff proved that the defendant officers' use of force was unjustified in this case, you must consider all of the proof relating to all of the pertinent circumstances at the time and place of the incident that you find is credible. The proof that the defendants contend is credible |
| includes: the | includes:• the |
| police receipt of 911 calls of a man with a gun inside the Moonstruck Diner at 23rd Street and 9th | police receipt of 911 calls of a man with a gun inside the Moonstruck Diner at 23rd Street and 9th |
| Avenue the | Avenue• the |
| police receipt of radio run calls of “shots | police receipt of radio run calls of “shots |
| fired” Lt. | fired”• Lt. |
| Herer's testimony that he smelled gun powder when he arrived at Moonstruck Diner and saw a blue haze he associates with | Herer's testimony that he smelled gun powder when he arrived at Moonstruck Diner and saw a blue haze he associates with |
| gunfire the | gunfire• the |
| officers' testimony that they saw a group of men hurriedly walking away from the | officers' testimony that they saw a group of men hurriedly walking away from the |
| diner Officer | diner• Officer |
| Murray's testimony that she saw that at least one of these men was holding something behind his leg which she could not | Murray's testimony that she saw that at least one of these men was holding something behind his leg which she could not |
| see Officer | see• Officer |
| Murray's testimony that she directed these men to stop and line up against the chain link | Murray's testimony that she directed these men to stop and line up against the chain link |
| fence the | fence• the |
| evidence that Bekim Ahmeti refused to stop and instead, | evidence that Bekim Ahmeti refused to stop and instead, |
| ran the | ran• the |
| evidence that as Bekim Ahmeti began to run he pulled out a | evidence that as Bekim Ahmeti began to run he pulled out a |
| gun the | gun• the |
| evidence that there were approximately 25 people in the immediate | evidence that there were approximately 25 people in the immediate |
| area Officer | area• Officer |
| Dalton saw the gun in Bekim Ahmeti's | Dalton saw the gun in Bekim Ahmeti's |
| hand Lt. | hand• Lt. |
| Herer saw the gun in Bekim Ahmeti's | Herer saw the gun in Bekim Ahmeti's |
| hand Officer | hand• Officer |
| Dalton's testimony that he saw the gun in Bekim Ahmeti's | Dalton's testimony that he saw the gun in Bekim Ahmeti's |
| hands the | hands• the |
| evidence that Bekim Ahmeti pointed the gun at the officers.To summarize, you must take into account the severity of the alleged crimes at issue, whether the plaintiffs decedent posed an immediate threat to the safety of the officers or other members of the public, and whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight.The following rules must also be applied when you consider whether the officers' actions were reasonable.You do not have to consider whether the officers had less intrusive or harmful alternatives available other than the course of action that they chose. If the defendant officers acted within the range of conduct that a reasonable officer might take, they may not be found liable.5A police officer authorized to use deadly physical force has no duty to retreat even if he knows that he can retreat with complete safety to himself and thereby avoid the necessity of using deadly physical force.6Also, the law does not require that, to avoid being held liable for their actions. police officers must, at their own peril, accurately measure the precise amount of force necessary in a particular situation.Nor does the law require that police officers' belief about the intention of another person to inflict serious injury be correct in order for their use of deadly force to be justified. The danger the police officers perceive need not be real or actual, it need only be apparent to a reasonable officer.7The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. (Graham v. Connor, 490 U.S. 386; 109 S.Ct. 1865; 104 L.Ed.2d 443 (1989)The finder of fact must allow for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation in circumstances that are tense, uncertain, and rapidly evolving. (Graham v. Connor, 490 U.S. 386; 109 S. Ct. 1865: 104 L.Ed.2d 443 (1989)Lastly, the extent of plaintiff's alleged injuries and the issue whether the precise amount of force used was actually required are not relevant to the decision whether a particular use of force was justified.8To summarize the law that you must apply to the facts as you find them, if you find that the greater weight of the proof shows that the officer defendants' use of deadly physical force was justified as a reasonable measure to protect the officers and/or the public in general, you must find that plaintiff failed to prove that the officers committed a battery. If, on the other hand, you find that the greater weight of the proof showed that the officer defendants' use of deadly physical force was not justified as a reasonable measure to protect the officers and/or the public in general, you must find that the officer defendants committed a battery.C. Case Documents Available on Westlaw1.Jury Instructions, 2001 WL 34822639Special Verdict Sheet With Interrogatories, 2001 WL 34822640Special Verdict Sheet With Interrogatories, 2001 WL 34822641Special Verdict Sheet With Interrogatories, 2001 WL 34822642Deposition, 2001 WL 34819354Report or Affidavit of Jacqueline A. LEE, M.D., 1993 WL 13254598Verdict and Settlement Summary, | evidence that Bekim Ahmeti pointed the gun at the officers.To summarize, you must take into account the severity of the alleged crimes at issue, whether the plaintiffs decedent posed an immediate threat to the safety of the officers or other members of the public, and whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight.The following rules must also be applied when you consider whether the officers' actions were reasonable.You do not have to consider whether the officers had less intrusive or harmful alternatives available other than the course of action that they chose. If the defendant officers acted within the range of conduct that a reasonable officer might take, they may not be found liable.5A police officer authorized to use deadly physical force has no duty to retreat even if he knows that he can retreat with complete safety to himself and thereby avoid the necessity of using deadly physical force.6Also, the law does not require that, to avoid being held liable for their actions. police officers must, at their own peril, accurately measure the precise amount of force necessary in a particular situation.Nor does the law require that police officers' belief about the intention of another person to inflict serious injury be correct in order for their use of deadly force to be justified. The danger the police officers perceive need not be real or actual, it need only be apparent to a reasonable officer.7The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. (Graham v. Connor, 490 U.S. 386; 109 S.Ct. 1865; 104 L.Ed.2d 443 (1989)The finder of fact must allow for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation in circumstances that are tense, uncertain, and rapidly evolving. (Graham v. Connor, 490 U.S. 386; 109 S. Ct. 1865: 104 L.Ed.2d 443 (1989)Lastly, the extent of plaintiff's alleged injuries and the issue whether the precise amount of force used was actually required are not relevant to the decision whether a particular use of force was justified.8To summarize the law that you must apply to the facts as you find them, if you find that the greater weight of the proof shows that the officer defendants' use of deadly physical force was justified as a reasonable measure to protect the officers and/or the public in general, you must find that plaintiff failed to prove that the officers committed a battery. If, on the other hand, you find that the greater weight of the proof showed that the officer defendants' use of deadly physical force was not justified as a reasonable measure to protect the officers and/or the public in general, you must find that the officer defendants committed a battery.C. Case Documents Available on Westlaw1.Jury Instructions, 2001 WL 34822639Special Verdict Sheet With Interrogatories, 2001 WL 34822640Special Verdict Sheet With Interrogatories, 2001 WL 34822641Special Verdict Sheet With Interrogatories, 2001 WL 34822642Deposition, 2001 WL 34819354Report or Affidavit of Jacqueline A. LEE, M.D., 1993 WL 13254598Verdict and Settlement Summary, |
| 2.Sample | 2001 WL 18298202.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: death decedent /s batteryD. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: death decedent /s batteryD. Research References1.Key |
| Numbers | NumbersAssault and Battery 34Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 11:6 Torts | 7:355§ 11:6 Torts |
| Other than Negligence; False Arrest; Malicious Prosecution; Outrageous ConductA. BackgroundType of Case: Police misconduct: One plaintiff, three individual defendants, one governmental defendantType of Injury: Emotional distress; headacheCase Name: Renee Colomba, Plaintiff, v. County Of Suffolk, David Kopycinski, Daniel Furey and James Parkinson, DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Daniel MartinDocket Number: 1062/2006Verdict Date: July 25, 2011Outcome: Verdict for plaintiff on liability as to malicious prosecution; verdict for defendants on remaining causes of action, for assault and battery, false arrest, Civil Rights Act violations, intentional infliction of emotional distress, police negligence.Brief Summary of Facts: Plaintiff alleged that she was responding to certain premises after learning that her son had been arrested by the police, and that upon arriving at said premises, she approached the police officer who was placing her son in the police car and asked the police to explain what was going on; she was told to ‘‘fucking back off’’ and that she should go to the precinct to find out; that when she responded ‘‘you gotta be kidding me,” one of the officers grabbed her causing her to fall to the ground, that she was thrown into the police car hitting her chest and head, that her face was pressed into the window; that she was forcefully handcuffed, arrested and taken to the police station where she was held against her will; that precinct station she was handcuffed tightly to the counter where officers refused to advise her of the charges against her, as to what she actually had done to be arrested; that the officer also refused a request for something to drink, as well as an Advil for serious headache she had sustained as a result of the defendant's actions; and that she was charged with obstruction of governmental administration in the second degree, and resisting arrest; and that she was acquitted of all charges after a trial at which the individual defendants gave testimony against her. After the jury found for the defendants on all claims except the malicious prosecution, the court reserved decision on a motion by the defendants to set aside such verdict.B. Jury Instructions1. Instructions Proposed By | Other than Negligence; False Arrest; Malicious Prosecution; Outrageous ConductA. BackgroundType of Case: Police misconduct: One plaintiff, three individual defendants, one governmental defendantType of Injury: Emotional distress; headacheCase Name: Renee Colomba, Plaintiff, v. County Of Suffolk, David Kopycinski, Daniel Furey and James Parkinson, DefendantsCourt: Supreme Court of New York, Suffolk CountyJudge: Daniel MartinDocket Number: 1062/2006Verdict Date: July 25, 2011Outcome: Verdict for plaintiff on liability as to malicious prosecution; verdict for defendants on remaining causes of action, for assault and battery, false arrest, Civil Rights Act violations, intentional infliction of emotional distress, police negligence.Brief Summary of Facts: Plaintiff alleged that she was responding to certain premises after learning that her son had been arrested by the police, and that upon arriving at said premises, she approached the police officer who was placing her son in the police car and asked the police to explain what was going on; she was told to ‘‘fucking back off’’ and that she should go to the precinct to find out; that when she responded ‘‘you gotta be kidding me,” one of the officers grabbed her causing her to fall to the ground, that she was thrown into the police car hitting her chest and head, that her face was pressed into the window; that she was forcefully handcuffed, arrested and taken to the police station where she was held against her will; that precinct station she was handcuffed tightly to the counter where officers refused to advise her of the charges against her, as to what she actually had done to be arrested; that the officer also refused a request for something to drink, as well as an Advil for serious headache she had sustained as a result of the defendant's actions; and that she was charged with obstruction of governmental administration in the second degree, and resisting arrest; and that she was acquitted of all charges after a trial at which the individual defendants gave testimony against her. After the jury found for the defendants on all claims except the malicious prosecution, the court reserved decision on a motion by the defendants to set aside such verdict.B. Jury Instructions1. Instructions Proposed By |
| Plaintiff1. | Plaintiff1. PJI 3:4 |
| Intentional Torts -- Interference with Person or Property -- Battery committed in Performance of Public Duty or Authority -- With the following modifications (in italics):To Paragraph Two: ‘‘Plaintiff claims the defendants David Kopycinski and Daniel Furey while in the process of arresting the Plaintiff grabbed the plaintiff threw her to the ground, pushed her into the side of the police car and forced her arms behind her back without provocation causing the Plaintiff to sustain scrapes and bruises to her face, arms and legs. Defendants admit that they grabbed her, pushed her into the police car and forced her arms behind her back, but says that plaintiff was attempting to open the door to the police car where her son was detained and was resisting arrest and that defendants used only as much force as they reasonably believed necessary under the circumstances.’’To Paragraph Three ‘‘Taking into consideration all of the circumstances existing at the time and place of the incident, if you find that it was not reasonable for the defendants to believe that plaintiff was attempting to open the door to the police car or resisting arrest, then. . . If, however, you find that the defendants reasonably believed that plaintiff was attempting to open the door to the police car and was resisting arrest, and that defendant was justified in using force to the extent that defendants reasonably believed it necessary prevent the plaintiff from opening the door and to make the arrest. . .Delete everything in the third paragraph after ‘‘(add when | Intentional Torts -- Interference with Person or Property -- Battery committed in Performance of Public Duty or Authority -- With the following modifications (in italics):To Paragraph Two: ‘‘Plaintiff claims the defendants David Kopycinski and Daniel Furey while in the process of arresting the Plaintiff grabbed the plaintiff threw her to the ground, pushed her into the side of the police car and forced her arms behind her back without provocation causing the Plaintiff to sustain scrapes and bruises to her face, arms and legs. Defendants admit that they grabbed her, pushed her into the police car and forced her arms behind her back, but says that plaintiff was attempting to open the door to the police car where her son was detained and was resisting arrest and that defendants used only as much force as they reasonably believed necessary under the circumstances.’’To Paragraph Three ‘‘Taking into consideration all of the circumstances existing at the time and place of the incident, if you find that it was not reasonable for the defendants to believe that plaintiff was attempting to open the door to the police car or resisting arrest, then. . . If, however, you find that the defendants reasonably believed that plaintiff was attempting to open the door to the police car and was resisting arrest, and that defendant was justified in using force to the extent that defendants reasonably believed it necessary prevent the plaintiff from opening the door and to make the arrest. . .Delete everything in the third paragraph after ‘‘(add when |
| applicable):‘‘2. | applicable):‘‘2. PJI 3:5 |
| -- Intentional Torts -- Interference with Person or Property -- False Arrest With the following modifications (in italics):Paragraph Two: Plaintiff claims that the defendants arrested her without a warrant for the crimes of Resisting Arrest in violation of Penal Law Sec. 205.30 and Obstructing Governmental Administration in violation of Penal Law Sec. 195.05. (Read the statutory language.)Paragraph Five: Defendants claim that at the time he arrested the Plaintiff, the facts as they appeared to him were that the Plaintiff had ‘‘repeatedly shoved and struck Sgt. Kopycinski and Police Officer Daniel Furey in an attempt to reach and open the door to a marked police unit in which her son, who was under arrest at the time, had been placed which prevented the defendants from transporting the prisoner to the precinct Further when Sgt. Kopycinski attempted to place the Plaintiff under arrest for the offense of obstructing governmental administration, the Plaintiff pulled away and struck Sgt. Kopycinski and Officer Daniel Furey with her | -- Intentional Torts -- Interference with Person or Property -- False Arrest With the following modifications (in italics):Paragraph Two: Plaintiff claims that the defendants arrested her without a warrant for the crimes of Resisting Arrest in violation of Penal Law Sec. 205.30 and Obstructing Governmental Administration in violation of Penal Law Sec. 195.05. (Read the statutory language.)Paragraph Five: Defendants claim that at the time he arrested the Plaintiff, the facts as they appeared to him were that the Plaintiff had ‘‘repeatedly shoved and struck Sgt. Kopycinski and Police Officer Daniel Furey in an attempt to reach and open the door to a marked police unit in which her son, who was under arrest at the time, had been placed which prevented the defendants from transporting the prisoner to the precinct Further when Sgt. Kopycinski attempted to place the Plaintiff under arrest for the offense of obstructing governmental administration, the Plaintiff pulled away and struck Sgt. Kopycinski and Officer Daniel Furey with her |
| hands.3. | hands.3. PJI 3:60 |
| Constitutional Torts -- | Constitutional Torts -- |
| 42 USC Sec. 1983 |
| -- Action for Deprivation of Federally Secured Rights.-- Omit the explanation of ‘‘under color of state law. . .’’ and replace with the language starting ‘‘There is no dispute. . .’’C. Case Documents Available on Westlaw1.Verified Complaint, 2005 WL 6738028Defendants' Request to Charge, 2011 WL 5889505Jury Verdict, 2011 WL 5889649Court Order reserving decision on motion to set aside verdict, | -- Action for Deprivation of Federally Secured Rights.-- Omit the explanation of ‘‘under color of state law. . .’’ and replace with the language starting ‘‘There is no dispute. . .’’C. Case Documents Available on Westlaw1.Verified Complaint, 2005 WL 6738028Defendants' Request to Charge, 2011 WL 5889505Jury Verdict, 2011 WL 5889649Court Order reserving decision on motion to set aside verdict, |
| 2011 WL 5901338 |
| 2.Sample Westlaw Query For Trial Court Documents in Similar Cases: ‘‘malicious prosecution’’ or ‘‘false arrest’’ or ‘‘assault battery/s police’’D. Research References1.Key | 2.Sample Westlaw Query For Trial Court Documents in Similar Cases: ‘‘malicious prosecution’’ or ‘‘false arrest’’ or ‘‘assault battery/s police’’D. Research References1.Key |
| Numbers 2.Westlaw | NumbersAssault and Battery 43Civil Rights 1088False Imprisonment 40Malicious Prosecution 422.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:83, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:83, |
| Appendix 11A Outline | 7:94Appendix 11A Outline |
| of PJI Comments for Torts Other Than NegligenceMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Torts Other Than Negligence, on the following specific | of PJI Comments for Torts Other Than NegligenceMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Torts Other Than Negligence, on the following specific |
| topics:BatteryFalse ArrestOutrageous ConductFraud | topics:•Battery•False Arrest•Outrageous Conduct•Fraud |
| and | and |
| DeceitDefamation | Deceit•Defamation |
| — | — |
| GenerallyPublic | Generally•Public |
| Official/Public | Official/Public |
| FigurePrivate | Figure•Private |
| Person and Matter of Public | Person and Matter of Public |
| ConcernPrivate | Concern•Private |
| Person and Matter of Private Concern and Non-Media | Person and Matter of Private Concern and Non-Media |
| DefendantDefamatory MeaningPublicationDamages: PresumedAbsolute | Defendant•Defamatory Meaning•Publication•Damages: Presumed•Absolute |
| Privilege (Fair and True | Privilege (Fair and True |
| Report)Qualified | Report)•Qualified |
| Privilege and Abuse | Privilege and Abuse |
| ThereofRight | Thereof•Right |
| of | of |
| PrivacyMalicious ProsecutionAbuse | Privacy•Malicious Prosecution•Abuse |
| of | of |
| ProcessInterference | Process•Interference |
| with Contract, Inducing | with Contract, Inducing |
| BreachInterference | Breach•Interference |
| with Prospective | with Prospective |
| AdvantageUnfair CompetitionDonnelly | Advantage•Unfair Competition•Donnelly |
| Act | Act |
| ViolationBreach | Violation•Breach |
| of Fiduciary | of Fiduciary |
| DutyAction | Duty•Action |
| under 42 U.S.C.A. § 1983Battery, GenerallyComment following | under 42 U.S.C.A. § 1983Battery, GenerallyComment following |
| (Vol. | PJI 3:3(Vol. |
| 2A, NY PJI, at 10 (2018))1.General comment2.Damages3.Mitigation of Damages4.Punitive Damages5.Statute of LimitationsFalse ArrestComment following | 2A, NY PJI, at 10 (2018))1.General comment2.Damages3.Mitigation of Damages4.Punitive Damages5.Statute of LimitationsFalse ArrestComment following |
| (Vol. | PJI 3:5(Vol. |
| 2A, NY PJI, at 31 (2018))I.Elements of False Arrest and False ImprisonmentA.Intent to ConfineB.Consciousness of Confinement and Absence of ConsentC.Privilege1.Detention in Defense of Self or of Property2.Detention for Investigationa.By a private personb.Merchant's privilege3.Civil Arrest4.Criminal Arresta.By police officer with a warrantb.By police officer without a warrantc.By a peace officer without a warrantd.By a private person5.Custodial or Disciplinary Detention6.Restraint of the Mentally Ill7.Burden of Proof on the Issue of Privilege8.Events Affecting Lawfulness of DetentionII.Persons LiableIII.DamagesA.CompensatoryB.PunitiveIV.Notice of Claim and Statute of LimitationsV.Related Causes of ActionOutrageous ConductComment following | 2A, NY PJI, at 31 (2018))I.Elements of False Arrest and False ImprisonmentA.Intent to ConfineB.Consciousness of Confinement and Absence of ConsentC.Privilege1.Detention in Defense of Self or of Property2.Detention for Investigationa.By a private personb.Merchant's privilege3.Civil Arrest4.Criminal Arresta.By police officer with a warrantb.By police officer without a warrantc.By a peace officer without a warrantd.By a private person5.Custodial or Disciplinary Detention6.Restraint of the Mentally Ill7.Burden of Proof on the Issue of Privilege8.Events Affecting Lawfulness of DetentionII.Persons LiableIII.DamagesA.CompensatoryB.PunitiveIV.Notice of Claim and Statute of LimitationsV.Related Causes of ActionOutrageous ConductComment following |
| (Vol. | PJI 3:6(Vol. |
| 2A, NY PJI, at 59 | 2A, NY PJI, at 59 |
| (2018))1.Background2.ElementsOutrageous ConductIntent | (2018))1.Background2.Elements•Outrageous Conduct•Intent |
| or | or |
| RecklessnessInjury3.DefensesFirst | Recklessness•Injury3.Defenses•First |
| Amendment Considerations4.Damages5.Statute of LimitationsFraud and DeceitComment following | Amendment Considerations4.Damages5.Statute of LimitationsFraud and DeceitComment following |
| (Vol. | PJI 3:20(Vol. |
| 2A, NY PJI, at 171 (2018))I.Elements of FraudA.Representation of a Material Fact1.Fact or Opinion2.Necessity of Present Intent3.Nondisclosure, Partial Disclosure and Concealment4.Duty of Disclosurea.“Special Facts” Doctrine/Superior Knowledge5.Indirect Representations6.Fraud Relating to Malpractice Actions7.Product Defects8.Miscellaneous IssuesB.FalsityC.ScienterD.Reliance1.Justifiable Reliancea.Equal Means Ruleb.Inspection of Public Recordsc.Disclaimers2.MaterialityE.InjuryF.Aiding and Abetting FraudG.Defenses1.In Pari Delicto2.RatificationH.Measure of Damages1.Punitive Damages2.Judiciary Law § 487II.Statute of LimitationsIII.Standard of ProofIV.Statutory RemediesDefamation — Introductory StatementComment preceding | 2A, NY PJI, at 171 (2018))I.Elements of FraudA.Representation of a Material Fact1.Fact or Opinion2.Necessity of Present Intent3.Nondisclosure, Partial Disclosure and Concealment4.Duty of Disclosurea.“Special Facts” Doctrine/Superior Knowledge5.Indirect Representations6.Fraud Relating to Malpractice Actions7.Product Defects8.Miscellaneous IssuesB.FalsityC.ScienterD.Reliance1.Justifiable Reliancea.Equal Means Ruleb.Inspection of Public Recordsc.Disclaimers2.MaterialityE.InjuryF.Aiding and Abetting FraudG.Defenses1.In Pari Delicto2.RatificationH.Measure of Damages1.Punitive Damages2.Judiciary Law § 487II.Statute of LimitationsIII.Standard of ProofIV.Statutory RemediesDefamation — Introductory StatementComment preceding |
| (Vol. | PJI 3:23(Vol. |
| 2A, NY PJI, at 243 (2018))A.TerminologyB.Elements of the Cause of Action under the Common Law and in Light of Constitutional Developments1.Libel/Slander Distinction2.Elements of Cause of Action3.Constitutional | 2A, NY PJI, at 243 (2018))A.TerminologyB.Elements of the Cause of Action under the Common Law and in Light of Constitutional Developments1.Libel/Slander Distinction2.Elements of Cause of Action3.Constitutional |
| ConsiderationsPrior | Considerations•Prior |
| RestraintC.Defenses1.Absolute Privilege2.Qualified Privilege3.“Constitutional Privilege”4.TruthD.Who May Be Defamed?E.Statute of Limitations and Single Publication RuleF.Internet Content ProvidersDefamation — Public Official/Public FigureComment Following | RestraintC.Defenses1.Absolute Privilege2.Qualified Privilege3.“Constitutional Privilege”4.TruthD.Who May Be Defamed?E.Statute of Limitations and Single Publication RuleF.Internet Content ProvidersDefamation — Public Official/Public FigureComment Following |
| (Vol. | PJI 3:23(Vol. |
| 2A, NY PJI, at 259 (2018))1.Public Officials2.Public Figures3.Constitutional Malice4.Falsity5.Burden of Proof and Summary Judgment MotionsDefamation — Elements — Private Person and Matter of Public ConcernComment following | 2A, NY PJI, at 259 (2018))1.Public Officials2.Public Figures3.Constitutional Malice4.Falsity5.Burden of Proof and Summary Judgment MotionsDefamation — Elements — Private Person and Matter of Public ConcernComment following |
| (Vol. | PJI 3:23A(Vol. |
| 2A, NY PJI, at 277 (2018))1.Gross Irresponsibility2.Matters of Public Concern3.Falsity4.Damages5.Defendant's StatusDefamation — Elements — Private Person and Matter of Private Concern and Non-Media DefendantComment following | 2A, NY PJI, at 277 (2018))1.Gross Irresponsibility2.Matters of Public Concern3.Falsity4.Damages5.Defendant's StatusDefamation — Elements — Private Person and Matter of Private Concern and Non-Media DefendantComment following |
| (Vol. | PJI 3:23B(Vol. |
| 2A, NY PJI, at 287 (2018))1.Fault2.Falsity3.DamagesDefamation — Defamatory MeaningComment following | 2A, NY PJI, at 287 (2018))1.Fault2.Falsity3.DamagesDefamation — Defamatory MeaningComment following |
| (Vol. | PJI 3:24(Vol. |
| 2A, NY PJI, at 310 (2018))1.Libel by Extrinsic Fact2.Single Instance Rule3.Slander Per Sea.Imputation of incompetence or dishonestyb.Imputation of commission of a serious crimec.Imputation of loathsome diseased.Imputation of serious sexual misconducte.Imputation of homosexual conductf.Other statementsDefamation — PublicationComment following | 2A, NY PJI, at 310 (2018))1.Libel by Extrinsic Fact2.Single Instance Rule3.Slander Per Sea.Imputation of incompetence or dishonestyb.Imputation of commission of a serious crimec.Imputation of loathsome diseased.Imputation of serious sexual misconducte.Imputation of homosexual conductf.Other statementsDefamation — PublicationComment following |
| (Vol. | PJI 3:26(Vol. |
| 2A, NY PJI, at 351 (2018))1.Single Publication Rule2.Republication and Repetition by Another3.Multiple Defendants Within Same Organization; Secondary PublishersDefamation — Compensatory Damages — Presumed DamagesComment following | 2A, NY PJI, at 351 (2018))1.Single Publication Rule2.Republication and Repetition by Another3.Multiple Defendants Within Same Organization; Secondary PublishersDefamation — Compensatory Damages — Presumed DamagesComment following |
| (Vol. | PJI 3:29(Vol. |
| 2A, NY PJI, at 375 (2018))1.Partial truth2.Retraction3.Provocation4.Other recoveryDefamation — Absolute Privilege — Defense of Fair and True ReportComment following | 2A, NY PJI, at 375 (2018))1.Partial truth2.Retraction3.Provocation4.Other recoveryDefamation — Absolute Privilege — Defense of Fair and True ReportComment following |
| (Vol. | PJI 3:31(Vol. |
| 2A, NY PJI, at 405 (2018))1.Legislators2.Executives of Government3.Judicial Proceedings4.Military Officers5.Spouses6.Radio or Television Stations7.Consent8.Neutral ReportingDefamation — Qualified Privilege; Abuse of PrivilegeComment following | 2A, NY PJI, at 405 (2018))1.Legislators2.Executives of Government3.Judicial Proceedings4.Military Officers5.Spouses6.Radio or Television Stations7.Consent8.Neutral ReportingDefamation — Qualified Privilege; Abuse of PrivilegeComment following |
| (Vol. | PJI 3:32(Vol. |
| 2A, NY PJI, at 424 (2018))1.Public Interest2.Common Interest of Publisher and Recipient3.Recipient's Interest4.Publisher's Interest5.Abuse of Privilegea.Common Law Maliceb.Constitutional MaliceRight of PrivacyComment following | 2A, NY PJI, at 424 (2018))1.Public Interest2.Common Interest of Publisher and Recipient3.Recipient's Interest4.Publisher's Interest5.Abuse of Privilegea.Common Law Maliceb.Constitutional MaliceRight of PrivacyComment following |
| (Vol. | PJI 3:45(Vol. |
| 2A, NY PJI, at 487 (2018))1.Civil Rights Law2.Newsworthiness Exception3.Constitutional Protection for Artistic Expression4.Advertising Purposes5.Incidental Uses6.Consent7.Statutory Exception regarding Artistic Productions8.Immunity for Cable Television Companies9.Statute of Limitations, Preemption and Damages10.Right of Publicity11.Privacy Claims Not Based on Civil Rights Law §§ 50 and 5112.Federal Telephone Consumer Protection Act of 1991Malicious Criminal ProsecutionComment following | 2A, NY PJI, at 487 (2018))1.Civil Rights Law2.Newsworthiness Exception3.Constitutional Protection for Artistic Expression4.Advertising Purposes5.Incidental Uses6.Consent7.Statutory Exception regarding Artistic Productions8.Immunity for Cable Television Companies9.Statute of Limitations, Preemption and Damages10.Right of Publicity11.Privacy Claims Not Based on Civil Rights Law §§ 50 and 5112.Federal Telephone Consumer Protection Act of 1991Malicious Criminal ProsecutionComment following |
| (Vol. | PJI 3:50(Vol. |
| 2A, NY PJI, at 518 (2018))A.Underlying Criminal Prosecution1.Judicial Proceeding2.Initiation by Defendant3.Favorable Termination4.Probable Cause5.Malice6.Damages7.Defenses8.Immunity9.Other RemediesMalicious Civil Prosecution Comment following | 2A, NY PJI, at 518 (2018))A.Underlying Criminal Prosecution1.Judicial Proceeding2.Initiation by Defendant3.Favorable Termination4.Probable Cause5.Malice6.Damages7.Defenses8.Immunity9.Other RemediesMalicious Civil Prosecution Comment following |
| PJI 3:50A |
| (Vol. 2A, NY PJI, at 550 (2018))I.In GeneralII.Special Considerations as to Lack of Probable CauseIII.Special Injury RequirementIV.Favorable TerminationV.MaliceVI.DamagesVII.Additional ConsiderationsAbuse of ProcessComment following | (Vol. 2A, NY PJI, at 550 (2018))I.In GeneralII.Special Considerations as to Lack of Probable CauseIII.Special Injury RequirementIV.Favorable TerminationV.MaliceVI.DamagesVII.Additional ConsiderationsAbuse of ProcessComment following |
| (Vol. | PJI 3:51(Vol. |
| 2A, NY PJI, at 559 (2018))1.Legal Process2.Ulterior Purpose and Collateral Advantage3.Damages4.DefensesInterference with Contract, Inducing BreachComment following | 2A, NY PJI, at 559 (2018))1.Legal Process2.Ulterior Purpose and Collateral Advantage3.Damages4.DefensesInterference with Contract, Inducing BreachComment following |
| (Vol. | PJI 3:56(Vol. |
| 2A, NY PJI, at 584 (2018))I.Requirement of a BreachII.Parties to a Tortious Interference ActionA.Who May Bring the ActionB.Who May Be Liable1.Corporate Officers2.Agent's and Attorneys3.ConspiratorsIII.Defendant's Knowledge of ContractIV.Intentional Procuring of BreachV.CausationVI.DefnsesA.PrivilegeB.Economic Interest or JustificationC.Negating an Economic Interest or JustificationVII.Defense DamagesVIII.Statute of LimitationsInterference with Prospective Economic RelationsComment following | 2A, NY PJI, at 584 (2018))I.Requirement of a BreachII.Parties to a Tortious Interference ActionA.Who May Bring the ActionB.Who May Be Liable1.Corporate Officers2.Agent's and Attorneys3.ConspiratorsIII.Defendant's Knowledge of ContractIV.Intentional Procuring of BreachV.CausationVI.DefnsesA.PrivilegeB.Economic Interest or JustificationC.Negating an Economic Interest or JustificationVII.Defense DamagesVIII.Statute of LimitationsInterference with Prospective Economic RelationsComment following |
| (Vol. | PJI 3:57(Vol. |
| 2A, NY PJI, at 604 (2018))1.Defendant's Knowledge of the Proposed Contract2.Intent to Interfere3.Causation4.Wrongful Means5.Sole Motive to Cause Harm6.Damages7.Contracts Terminable at Will8.Statute of Limitations9.MiscellaneousUnfair Competition — Introductory StatementComment preceding | 2A, NY PJI, at 604 (2018))1.Defendant's Knowledge of the Proposed Contract2.Intent to Interfere3.Causation4.Wrongful Means5.Sole Motive to Cause Harm6.Damages7.Contracts Terminable at Will8.Statute of Limitations9.MiscellaneousUnfair Competition — Introductory StatementComment preceding |
| (Vol. | PJI 3:58(Vol. |
| 2A, NY PJI at 615 (2018))1.Federal-State Jurisdiction2.The Law Applied by New York Courtsa.Trade Secretsb.Trademark or Trade Name Infringementc.Palming Offd.Misappropriatione.False Labeling or Advertisingf.Anticybersquatting Consumer Protection Act3.Price GougingUnfair Competition — Donnelly Act ViolationComment following | 2A, NY PJI at 615 (2018))1.Federal-State Jurisdiction2.The Law Applied by New York Courtsa.Trade Secretsb.Trademark or Trade Name Infringementc.Palming Offd.Misappropriatione.False Labeling or Advertisingf.Anticybersquatting Consumer Protection Act3.Price GougingUnfair Competition — Donnelly Act ViolationComment following |
| (Vol. | PJI 3:58(Vol. |
| 2A, NY PJI at 627 (2018))1.Federal/State Jurisdiction2.The Statute3.Monopoly4.The Elements5.Relevant Product Market6.Conspiracy7.Nature and Effects of the Economic Impact8.Damages9.Rule of Reason v Per Se Violations10.Defenses11.Extraterritorial scope12.MiscellaneousBreach of Fiduciary DutyComment following | 2A, NY PJI at 627 (2018))1.Federal/State Jurisdiction2.The Statute3.Monopoly4.The Elements5.Relevant Product Market6.Conspiracy7.Nature and Effects of the Economic Impact8.Damages9.Rule of Reason v Per Se Violations10.Defenses11.Extraterritorial scope12.MiscellaneousBreach of Fiduciary DutyComment following |
| (Vol. | PJI 3:59(Vol. |
| 2A, NY PJI, at 641 (2018))1.Elements and Nature of Fiduciary Duty2.Co-ficuaries3.Aiding and Abetting Breach of Fiduciary Duty4.Employees5.Corporate Officers and Directors6.Cooperative and Condominium Boards of Directors7.Real Estate Brokers8.School Board Members9.Investment Brokers and Underwriters10.Partners/Co-Venturers11.Limited Liability Companies12.Attorneys13.Trustees14.Escrow Agents15.Co-Tenants16.Spouses17.Attorneys-in-Fact18.Clergy19.Physicians20.Damages21.Prejudgment Interest22.Statute of Limitations23.MiscellaneousActions for Deprivation of Federally Secured Rights (42 U.S.C. § 1983)Comment following | 2A, NY PJI, at 641 (2018))1.Elements and Nature of Fiduciary Duty2.Co-ficuaries3.Aiding and Abetting Breach of Fiduciary Duty4.Employees5.Corporate Officers and Directors6.Cooperative and Condominium Boards of Directors7.Real Estate Brokers8.School Board Members9.Investment Brokers and Underwriters10.Partners/Co-Venturers11.Limited Liability Companies12.Attorneys13.Trustees14.Escrow Agents15.Co-Tenants16.Spouses17.Attorneys-in-Fact18.Clergy19.Physicians20.Damages21.Prejudgment Interest22.Statute of Limitations23.MiscellaneousActions for Deprivation of Federally Secured Rights (42 U.S.C. § 1983)Comment following |
| (Vol. | PJI 3:60(Vol. |
| 2A, NY PJI, at 677 (2018))1.Due Process2.Defamation3.Equal Protection4.Land Use Cases5.Search Pursuant to a Search Warrant6.Warrantless Searches7.Retaliation for Constitutionally Protected Speech8.Excessive Force9.Cruel and Unusual Punishment10.Malicious Prosecution11.Under Color of Law12.Municipal Liability13.Immunitya.Absolute Immunityb.Qualified Immunity14.Punitive Damages15.Statute of Limitations16.Notice of Claim17.Attorneys' Fees18.MiscellaneousChapter 12Intentional Torts; Prison-Related Injuries§ 12:1Prison-Related Injuries; Assault by another inmate§ 12:2Prison-related torts; assault by group of inmatesKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 12:1 Prison-Related Injuries; Assault by another inmateA. BackgroundType of Case: Correctional institution violence; assault by inmate; negligence of operator of prisonType of Damages: Unspecified permanent personal injuriesCase Name: Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York City Department of Corrections, Defendant(s).Court: New York State Supreme Court, Queens CountyJudge: Hon. Allan B. WeissDocket Number: 8000408Outcome: Verdict for defendantDate of verdict: December 18, 2013Brief Summary of Factual Allegations: The plaintiff was incarcerated a correctional institution awaiting trial, and alleged he was assaulted and injured by another inmate.B. Proposed Jury Instructions1. Jury instructions proposed by plaintiff1.General Charges-Charge After | 2A, NY PJI, at 677 (2018))1.Due Process2.Defamation3.Equal Protection4.Land Use Cases5.Search Pursuant to a Search Warrant6.Warrantless Searches7.Retaliation for Constitutionally Protected Speech8.Excessive Force9.Cruel and Unusual Punishment10.Malicious Prosecution11.Under Color of Law12.Municipal Liability13.Immunitya.Absolute Immunityb.Qualified Immunity14.Punitive Damages15.Statute of Limitations16.Notice of Claim17.Attorneys' Fees18.MiscellaneousChapter 12Intentional Torts; Prison-Related Injuries§ 12:1Prison-Related Injuries; Assault by another inmate§ 12:2Prison-related torts; assault by group of inmatesKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.§ 12:1 Prison-Related Injuries; Assault by another inmateA. BackgroundType of Case: Correctional institution violence; assault by inmate; negligence of operator of prisonType of Damages: Unspecified permanent personal injuriesCase Name: Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York City Department of Corrections, Defendant(s).Court: New York State Supreme Court, Queens CountyJudge: Hon. Allan B. WeissDocket Number: 8000408Outcome: Verdict for defendantDate of verdict: December 18, 2013Brief Summary of Factual Allegations: The plaintiff was incarcerated a correctional institution awaiting trial, and alleged he was assaulted and injured by another inmate.B. Proposed Jury Instructions1. Jury instructions proposed by plaintiff1.General Charges-Charge After |
| Triala) Introductionb) | Triala)PJI 1:20 Introductionb)PJI 1:21 |
| Review Principles | Review Principles |
| Statedc) | Statedc)PJI 1:22 |
| Falsus in | Falsus in |
| Unod) | Unod)PJI 1:24 |
| Return to | Return to |
| Courtroome) | Courtroome)PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibitsf) | Exhibitsf)PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdictg) | Verdictg)PJI 1:27 |
| Exclude | Exclude |
| Sympathyh) Conclusioni) | Sympathyh)PJI 1:28 Conclusioni)PJI 1:29 |
| Alternate | Alternate |
| Jurorsj) | Jurorsj)PJI 1:56 |
| General Instruction-Admission by a Party-By Conduct (as modified):Evidence has been introduced through Captain Santiago's report that the City concluded that Mr. Brown was assaulted by Inmate Rivera. The City has taken a contrary position at trial.You will consider how much weight you wish to give to Captain Santiago's conclusion that Inmate Rivera assaulted Mr. Brown. In making that decision, you will take into consideration defendant's explanation of why Captain Santiago concluded that Mr. Brown was assaulted by Inmate Rivera and all of the facts and circumstances concerning it that are in evidence. Such a conclusion may be considered by you as an admission by the City that its case is weak pertaining to the issue of whether Inmate Rivera assaulted Mr. Brown and that the City's evidence is dishonest as to this issue. Captain Santiago's conclusion tends to discredit the City's witnesses and casts doubt upon the City's position that Inmate Rivera did not assault Mr. Brown. The fact that you find that Captain Santiago's conclusion was previously made does not, however, mean that you must find in favor of plaintiff as to this exact issue. You may consider Captain Santiago's conclusion that Mr. Brown was assaulted by Inmate Rivera to be conclusive and binding with respect to this aspect of the case; you may ignore it altogether, or you may give it a weight between those two | General Instruction-Admission by a Party-By Conduct (as modified):Evidence has been introduced through Captain Santiago's report that the City concluded that Mr. Brown was assaulted by Inmate Rivera. The City has taken a contrary position at trial.You will consider how much weight you wish to give to Captain Santiago's conclusion that Inmate Rivera assaulted Mr. Brown. In making that decision, you will take into consideration defendant's explanation of why Captain Santiago concluded that Mr. Brown was assaulted by Inmate Rivera and all of the facts and circumstances concerning it that are in evidence. Such a conclusion may be considered by you as an admission by the City that its case is weak pertaining to the issue of whether Inmate Rivera assaulted Mr. Brown and that the City's evidence is dishonest as to this issue. Captain Santiago's conclusion tends to discredit the City's witnesses and casts doubt upon the City's position that Inmate Rivera did not assault Mr. Brown. The fact that you find that Captain Santiago's conclusion was previously made does not, however, mean that you must find in favor of plaintiff as to this exact issue. You may consider Captain Santiago's conclusion that Mr. Brown was assaulted by Inmate Rivera to be conclusive and binding with respect to this aspect of the case; you may ignore it altogether, or you may give it a weight between those two |
| extremes.k) | extremes.k)PJI 1:92 |
| General Instruction-Interested Witness-Employee of | General Instruction-Interested Witness-Employee of |
| Partyl) | Partyl)PJI 1:75 |
| General Instruction-Failure to Produce Witness (As to Officer | General Instruction-Failure to Produce Witness (As to Officer |
| Massey)m) | Massey)m)PJI 1:77 |
| General Instruction-Failure to Produce Documents (As to Inmate Rivera's file; a full version of the confidential informant's statement; and as to facility | General Instruction-Failure to Produce Documents (As to Inmate Rivera's file; a full version of the confidential informant's statement; and as to facility |
| protocols.)n) | protocols.)n)PJI 2:235 |
| Vicarious or Derivative Responsibility-Employer-Employee-Scope of Employment2.Burden of | Vicarious or Derivative Responsibility-Employer-Employee-Scope of Employment2.Burden of |
| Proofa) | Proofa)PJI 1:70 |
| Circumstantial | Circumstantial |
| Evidenceb) | Evidenceb)PJI 1:60 |
| When Burden Differs on Different | When Burden Differs on Different |
| Issues3.Negligencea) | Issues3.Negligencea)PJI 2:10 |
| Common Law Standard of Care-Negligence Defined Generally (As modified):The defendants City of New York, New York City Department of Corrections and corrections official have a duty to provide inmates with reasonable protection against foreseeable risks of attack by other prisoners. Negligence is lack of ordinary | Common Law Standard of Care-Negligence Defined Generally (As modified):The defendants City of New York, New York City Department of Corrections and corrections official have a duty to provide inmates with reasonable protection against foreseeable risks of attack by other prisoners. Negligence is lack of ordinary |
| care.b) | care.b)PJI 2:15 |
| Common Law Standard of Care-Defendant Having Special | Common Law Standard of Care-Defendant Having Special |
| Knowledgec) | Knowledgec)PJI 2:16 |
| Common Law Standard of Care-Customary Business | Common Law Standard of Care-Customary Business |
| Practices4.Forseeabilitya) | Practices4.Forseeabilitya)PJI 2:12 |
| Common Law Standard of Care-Foreseeability Defined Generally5.Statutory Standard of | Common Law Standard of Care-Foreseeability Defined Generally5.Statutory Standard of |
| Carea) | Carea)PJI 2:29 |
| Ordinances or Regulations (9 NYCRR 7003.3(a)(c); | Ordinances or Regulations (9 NYCRR 7003.3(a)(c); |
| ,(b), | 7003.2(a),(b), |
| (c)(l)(2)(3)4); 7003.1)6.Proximate | (c)(l)(2)(3)4); 7003.1)6.Proximate |
| Causea) | Causea)PJI 2:70 |
| Proximate Cause-In | Proximate Cause-In |
| Generalb) | Generalb)PJI 2:71 |
| Concurrent Causes2. Defendant's Request to Charge on | Concurrent Causes2. Defendant's Request to Charge on |
| Liability1. Introduction2. | Liability1.PJI 1:20 Introduction2.PJI 1:21 |
| Review Principles | Review Principles |
| Stated3. | Stated3.PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4.PJI 1:23 |
| Burden of | Burden of |
| Proof5. | Proof5.PJI 1:24 |
| Return to | Return to |
| Courtroom6. | Courtroom6.PJI 1:25 |
| Consider only the Testimony and | Consider only the Testimony and |
| Exhibits7. | Exhibits7.PJI 1:27 |
| Exclude | Exclude |
| Sympathy8. Conclusion9. | Sympathy8.PJI 1:28 Conclusion9.PJI 1:37 |
| Jury | Jury |
| Function10. | Function10.PJI 1:38 |
| Court | Court |
| Function11. | Function11.PJI 1:40 |
| Consider Only Competent | Consider Only Competent |
| Evidence12. | Evidence12.PJI 1:41 |
| Weighing | Weighing |
| Testimony13. | Testimony13.PJI 1:91 |
| Interested Witnesses: | Interested Witnesses: |
| Plaintiff14. | Plaintiff14.PJI 2:70 |
| Proximate Cause15.Duty of the City of New York: The City has a duty to act reasonably in supervising inmates from assaults by other inmates which are foreseeable. See Sanchez v. State of New York, 99 N.Y.2d 247 (2002). However, the City is not an insurer against any injuries that might occur. Stanley v. State of New York. 239 AD2d 700 (3d Dep't 1997).The plaintiff claims that he was assaulted by inmate Tommy Rivera. The plaintiffs contend that the City had notice that Tommy Rivera would assault plaintiff and that the City was negligent in supervising the Rikers Island facility. The City claims that it provided reasonable supervision and denies that it had notice that inmate Tommy Rivera would assault plaintiff.The City cannot guarantee the safety of all inmates and cannot prevent every assault. In order to recover against the City in this lawsuit, plaintiff must prove that (1) Tommy Rivera assaulted plaintiff on April 6, 2007; and (2) before April 6, 2007, the City knew or should have known that Tommy Rivera would assault plaintiff; and (3) that the City failed act reasonably to supervise plaintiff against an assault by Tommy Rivera. See Didonato v. State of New York, 25 AD3d 944 (3d Dep't 2006).The first question for you to consider, therefore, is whether Tommy Rivera assaulted plaintiff on April 6, 2007. If you find that Tommy Rivera did not assault plaintiff on April 6, 2007, you will find that the City was not negligent. If you find that the assault by Tommy Rivera did occur, you will then determine whether the City had notice, before the incident, that plaintiff would be assaulted by fellow inmate Tommy Rivera and that the City failed to act reasonably to supervise plaintiff against an assault by Tommy Rivera.If you find that the City did not have notice of the fact that Tommy Rivera would assault plaintiff, you will find that the City was not negligent. If you find that the City had notice of the fact that Tommy Rivera would assault plaintiff, you will next consider whether the City was negligent in failing to provide adequate supervision.If you find that the City failed to provide reasonable supervision at Rikers Island and that the City had notice that Tommy Rivera would assault plaintiff, your finding will be that the City was negligent.16.Plaintiff cannot recover from the City of New York in this lawsuit for his injuries resulting from a fight if plaintiff was a voluntary participant in the fight. See Williams v. City of New York, 41 A.D.3d 468 (2d Dep't 2007); Williams v. Board of Education, 277 A.D.2d 373 (2d Dep't 2000). If you find that plaintiff's injuries occurred from a fight where plaintiff was a voluntary participant, you will find that the City was not responsible for the | Proximate Cause15.Duty of the City of New York: The City has a duty to act reasonably in supervising inmates from assaults by other inmates which are foreseeable. See Sanchez v. State of New York, 99 N.Y.2d 247 (2002). However, the City is not an insurer against any injuries that might occur. Stanley v. State of New York. 239 AD2d 700 (3d Dep't 1997).The plaintiff claims that he was assaulted by inmate Tommy Rivera. The plaintiffs contend that the City had notice that Tommy Rivera would assault plaintiff and that the City was negligent in supervising the Rikers Island facility. The City claims that it provided reasonable supervision and denies that it had notice that inmate Tommy Rivera would assault plaintiff.The City cannot guarantee the safety of all inmates and cannot prevent every assault. In order to recover against the City in this lawsuit, plaintiff must prove that (1) Tommy Rivera assaulted plaintiff on April 6, 2007; and (2) before April 6, 2007, the City knew or should have known that Tommy Rivera would assault plaintiff; and (3) that the City failed act reasonably to supervise plaintiff against an assault by Tommy Rivera. See Didonato v. State of New York, 25 AD3d 944 (3d Dep't 2006).The first question for you to consider, therefore, is whether Tommy Rivera assaulted plaintiff on April 6, 2007. If you find that Tommy Rivera did not assault plaintiff on April 6, 2007, you will find that the City was not negligent. If you find that the assault by Tommy Rivera did occur, you will then determine whether the City had notice, before the incident, that plaintiff would be assaulted by fellow inmate Tommy Rivera and that the City failed to act reasonably to supervise plaintiff against an assault by Tommy Rivera.If you find that the City did not have notice of the fact that Tommy Rivera would assault plaintiff, you will find that the City was not negligent. If you find that the City had notice of the fact that Tommy Rivera would assault plaintiff, you will next consider whether the City was negligent in failing to provide adequate supervision.If you find that the City failed to provide reasonable supervision at Rikers Island and that the City had notice that Tommy Rivera would assault plaintiff, your finding will be that the City was negligent.16.Plaintiff cannot recover from the City of New York in this lawsuit for his injuries resulting from a fight if plaintiff was a voluntary participant in the fight. See Williams v. City of New York, 41 A.D.3d 468 (2d Dep't 2007); Williams v. Board of Education, 277 A.D.2d 373 (2d Dep't 2000). If you find that plaintiff's injuries occurred from a fight where plaintiff was a voluntary participant, you will find that the City was not responsible for the |
| injuries.17. | injuries.17.PJI 2:36 |
| Comparative | Comparative |
| Fault18. | Fault18.PJI 2:275.1 |
| Article 16 (modified)If you find that the City was at fault for the incident, you must next decide what part of the total fault Tommy Rivera. plaintiff, and the City of New York should bear. If you find that the plaintiff was assaulted by Tommy Rivera. the Court finds as a matter of law that inmate Tommy Rivera is responsible for the assault. In deciding the total fault of Tommy Rivera, plaintiff and the City of New York. you will weigh the degree of fault of each and determine the responsibility of each of them for the incident. In your verdict you will state the percentage of fault, if any, of Tommy Rivera. plaintiff, and the city of New York. The total of these percentages must add up to 100 per cent.Plaintiff has the burden of proving the fault of the City and/or Tommy Rivera by a preponderance of the evidence. The City has the burden of proving by a preponderance of the evidence that plaintiff and inmate Tommy Rivera were at fault and the percentage of that fault.19.Plaintiff has committed crimes. You may consider these crimes, along with other relevant evidence, in deciding whether the testimony of plaintiff is credible — whether the testimony is believable. In other words, these crimes may be used by you to determine whether the plaintiff has testified truthfully and in deciding how much weight to give plaintiffs testimony. | Article 16 (modified)If you find that the City was at fault for the incident, you must next decide what part of the total fault Tommy Rivera. plaintiff, and the City of New York should bear. If you find that the plaintiff was assaulted by Tommy Rivera. the Court finds as a matter of law that inmate Tommy Rivera is responsible for the assault. In deciding the total fault of Tommy Rivera, plaintiff and the City of New York. you will weigh the degree of fault of each and determine the responsibility of each of them for the incident. In your verdict you will state the percentage of fault, if any, of Tommy Rivera. plaintiff, and the city of New York. The total of these percentages must add up to 100 per cent.Plaintiff has the burden of proving the fault of the City and/or Tommy Rivera by a preponderance of the evidence. The City has the burden of proving by a preponderance of the evidence that plaintiff and inmate Tommy Rivera were at fault and the percentage of that fault.19.Plaintiff has committed crimes. You may consider these crimes, along with other relevant evidence, in deciding whether the testimony of plaintiff is credible — whether the testimony is believable. In other words, these crimes may be used by you to determine whether the plaintiff has testified truthfully and in deciding how much weight to give plaintiffs testimony. |
| []20. | [CPLR 4513]20.PJI 1:55 |
| General Instruction-Admission by a Party-By StatementTestimony has been introduced that plaintiff made a statement to Defendants after the incident concerning [the. incident]. Plaintiff admits that he made such a statement, but says [he was afraid to tell the truth). If you find that plaintiff made such a statement and that he thereby admitted [how the incident happened], you may consider that statement as evidence of how the accident happened.In deciding whether such a statement was made, you will apply the rules I have already given you about the evaluation of testimony. You may accept either party's version of what happened in whole or in part or you may accept a part of the versions given by both. In deciding how much weight you will give to the statement, if any, you can consider plaintiff's physical condition at the time the statement was made, the words used, the person to whom the statement was made, the time that passed between the making of the statement and the occurrence, accident, all of the other circumstances and conditions existing at the time and place, and the other facts in evidence, as well as the reasonableness of the plaintiffs explanation of the statement. You may consider the statement to be conclusive and binding on plaintiff, or you may ignore it altogether, or you may give it a weight between those two extremes, as you find proper under all the circumstances.C. Case Documents available on | General Instruction-Admission by a Party-By StatementTestimony has been introduced that plaintiff made a statement to Defendants after the incident concerning [the. incident]. Plaintiff admits that he made such a statement, but says [he was afraid to tell the truth). If you find that plaintiff made such a statement and that he thereby admitted [how the incident happened], you may consider that statement as evidence of how the accident happened.In deciding whether such a statement was made, you will apply the rules I have already given you about the evaluation of testimony. You may accept either party's version of what happened in whole or in part or you may accept a part of the versions given by both. In deciding how much weight you will give to the statement, if any, you can consider plaintiff's physical condition at the time the statement was made, the words used, the person to whom the statement was made, the time that passed between the making of the statement and the occurrence, accident, all of the other circumstances and conditions existing at the time and place, and the other facts in evidence, as well as the reasonableness of the plaintiffs explanation of the statement. You may consider the statement to be conclusive and binding on plaintiff, or you may ignore it altogether, or you may give it a weight between those two extremes, as you find proper under all the circumstances.C. Case Documents available on |
| WestlawVerified | Westlaw•Verified |
| Complaint, Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York City Department of Corrections, Defendant(s)., 2009 WL 9438778 | Complaint, Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York City Department of Corrections, Defendant(s)., 2009 WL 9438778 |
| (N.Y.Sup.)Affirmation | (N.Y.Sup.)•Affirmation |
| in Support of Defendant's Motion for Summary Judgment, Naeem BROWN, Plaintiff, v. CITY OF NEW YORK and New York City Department of Corrections, Defendants., 2010 WL 9953375 | in Support of Defendant's Motion for Summary Judgment, Naeem BROWN, Plaintiff, v. CITY OF NEW YORK and New York City Department of Corrections, Defendants., 2010 WL 9953375 |
| (N.Y.Sup.)Affirmation | (N.Y.Sup.)•Affirmation |
| in Opposition, Naeem BROWN, v. CITY OF NEW YORK, et al., 2011 WL 11575680 | in Opposition, Naeem BROWN, v. CITY OF NEW YORK, et al., 2011 WL 11575680 |
| (N.Y.Sup.)Affirmation | (N.Y.Sup.)•Affirmation |
| in Reply, Naeem BROWN, Plaintiff, v. CITY OF NEW YORK and New York City Department of Corrections, Defendants., 2011 WL 11575682 | in Reply, Naeem BROWN, Plaintiff, v. CITY OF NEW YORK and New York City Department of Corrections, Defendants., 2011 WL 11575682 |
| (N.Y.Sup.)Trial | (N.Y.Sup.)•Trial |
| Memorandum, Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York | Memorandum, Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York |
| CityDepartment | City•Department |
| of Corrections, Defendant(s)., 2013 WL 7228559 | of Corrections, Defendant(s)., 2013 WL 7228559 |
| (N.Y.Sup.)Defendant's | (N.Y.Sup.)•Defendant's |
| Trial Memorandum, Naeem BROWN, Plaintiff, v. THE CITY OF NEW YORK and New York City Department of Corrections, Defendant., 2013 WL 7228558 | Trial Memorandum, Naeem BROWN, Plaintiff, v. THE CITY OF NEW YORK and New York City Department of Corrections, Defendant., 2013 WL 7228558 |
| (N.Y.Sup.)Plaintiff's | (N.Y.Sup.)•Plaintiff's |
| Proposed Request to Charge, Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York City Department of Corrections, Defendant(s)., 2013 WL 7228572 | Proposed Request to Charge, Naeem BROWN, Plaintiff(s), v. CITY OF NEW YORK and New York City Department of Corrections, Defendant(s)., 2013 WL 7228572 |
| (N.Y.Sup.)Defendant's | (N.Y.Sup.)•Defendant's |
| Request to Charge on Liability, Naeem BROWN, Plaintiff, v. THE CITY OF NEW YORK, Defendant., 2013 WL 7228569 | Request to Charge on Liability, Naeem BROWN, Plaintiff, v. THE CITY OF NEW YORK, Defendant., 2013 WL 7228569 |
| (N.Y.Sup.)Verdict | (N.Y.Sup.)•Verdict |
| Sheet, Naeem BROWN, Plaintiff, v. THE CITY OF NEW YORK, and New York City Department of Corrections, Defendants., 2013 WL 7217553 | Sheet, Naeem BROWN, Plaintiff, v. THE CITY OF NEW YORK, and New York City Department of Corrections, Defendants., 2013 WL 7217553 |
| (N.Y.Sup.)Order | (N.Y.Sup.)•Order |
| Granting Defendant's Motion for Summary Judgment, | Granting Defendant's Motion for Summary Judgment, |
| Trial | Brown v. City of New York, 2011 WL 11576017 (N.Y.Sup.)•Trial |
| Order reciting jury verdict for defendant, Brown v. City of New York, 2013 WL 7861555 (N.Y.Sup.)Sample Westlaw Query for Trial Court documents in Similar Cases: adv: prisoner inmate incarcerat! and assaultD. Research References1.Key | Order reciting jury verdict for defendant, Brown v. City of New York, 2013 WL 7861555 (N.Y.Sup.)Sample Westlaw Query for Trial Court documents in Similar Cases: adv: prisoner inmate incarcerat! and assaultD. Research References1.Key |
| Numbers , , | NumbersPrisons 126, 308, 313Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 6:102, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 6:102, |
| § 12:2 Prison-related | 12:34§ 12:2 Prison-related |
| torts; assault by group of inmatesA. BackgroundType of Case: Assault by fellow prisoners; municipal liabilityType of Injury/Damages: Physical and mental injuriesCase Name: Jamie FRANCO, Plaintiff, v. THE CITY OF NEW YORK, New York City Department of Corrections, Corrections Officer Powell, Defendants.Court: New York State Supreme Court, Queens CountyIndex No.: 14112/2012Verdict: Not knownB. Defendant's Proposed Jury | torts; assault by group of inmatesA. BackgroundType of Case: Assault by fellow prisoners; municipal liabilityType of Injury/Damages: Physical and mental injuriesCase Name: Jamie FRANCO, Plaintiff, v. THE CITY OF NEW YORK, New York City Department of Corrections, Corrections Officer Powell, Defendants.Court: New York State Supreme Court, Queens CountyIndex No.: 14112/2012Verdict: Not knownB. Defendant's Proposed Jury |
| Charges1.. Introduction2. | Charges1.PJI 1:20. Introduction2.PJI 1:21 |
| Review Principles | Review Principles |
| Stated3. | Stated3.PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4.PJI 1:23 |
| Burden of | Burden of |
| Proof5. | Proof5.PJI 1:24 |
| Return to | Return to |
| Courtroom6. | Courtroom6.PJI 1:25 |
| Considers only the Testimony and | Considers only the Testimony and |
| Exhibits7. | Exhibits7.PJI 1:27 |
| Exclude | Exclude |
| Sympathy8. Conclusion9. | Sympathy8.PJI 1:28 Conclusion9.PJI 1:37 |
| Jury | Jury |
| Function10. | Function10.PJI 1:38 |
| Court | Court |
| Function11. | Function11.PJI 1:40 |
| Consider Only Competent | Consider Only Competent |
| Evidence12. | Evidence12.PJI 1:41 |
| Weighing | Weighing |
| Testimony13. | Testimony13.PJI 1:91 |
| Interested Witnesses: | Interested Witnesses: |
| Plaintiff14. | Plaintiff14.PJI 2:70 |
| Proximate Cause15.Duty of the City of New York:The City has a duty to act reasonably in supervising inmates from assaults b other inmates which are foreseeable. See Sanchez v. State of New York, 99 N.Y.2d 247 (2002). However, the City is not an insurer against any injuries that might occur. Flaherty v. State, 296 N.Y. 342 (1947); see also Stanley v. State of New York, 239 A.D.2d 700 (3d Dep't 1997).The Plaintiff claims that he was assaulted by a group of inmates. The Plaintiff contends that the City was negligent in supervising the Rikers Island facility. The City claims that it provided reasonable supervision.The City cannot guarantee the safety of all inmates and cannot prevent every assault. In order to recover against the City in this lawsuit, plaintiff must prove that (1) a group of inmates assaulted Plaintiff on January 27, 2010; and (2) that the City failed act reasonably to supervise Plaintiff against an assault by a group of inmates. See Didonato v. State of New York, 25 AD3d 944 (3d Dep't 2006).The first question for you to consider, therefore is whether Plaintiff was assaulted on January 27, 2010. If you find that the group of inmates did not assault Plaintiff on January 27, 2010, you will find that the City was not negligent. If you find that the assault by a group of inmates did occur, then you will determine whether the City was negligent in supervising 3 Top housing unit at the time of the alleged incident. If you find that the City was not negligent in supervising the 3 Top housing unit, then your finding will be that the City was not | Proximate Cause15.Duty of the City of New York:The City has a duty to act reasonably in supervising inmates from assaults b other inmates which are foreseeable. See Sanchez v. State of New York, 99 N.Y.2d 247 (2002). However, the City is not an insurer against any injuries that might occur. Flaherty v. State, 296 N.Y. 342 (1947); see also Stanley v. State of New York, 239 A.D.2d 700 (3d Dep't 1997).The Plaintiff claims that he was assaulted by a group of inmates. The Plaintiff contends that the City was negligent in supervising the Rikers Island facility. The City claims that it provided reasonable supervision.The City cannot guarantee the safety of all inmates and cannot prevent every assault. In order to recover against the City in this lawsuit, plaintiff must prove that (1) a group of inmates assaulted Plaintiff on January 27, 2010; and (2) that the City failed act reasonably to supervise Plaintiff against an assault by a group of inmates. See Didonato v. State of New York, 25 AD3d 944 (3d Dep't 2006).The first question for you to consider, therefore is whether Plaintiff was assaulted on January 27, 2010. If you find that the group of inmates did not assault Plaintiff on January 27, 2010, you will find that the City was not negligent. If you find that the assault by a group of inmates did occur, then you will determine whether the City was negligent in supervising 3 Top housing unit at the time of the alleged incident. If you find that the City was not negligent in supervising the 3 Top housing unit, then your finding will be that the City was not |
| negligent.16. | negligent.16.PJI 2:36 |
| Comparative | Comparative |
| Fault17. | Fault17.PJI 2:275.1 |
| Article 16 (modified)If you find that the City was at fault for the incident, you must next decide what part of the total fault of the group of inmates (Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett), Plaintiff, and the City of New York should bear. If you find that the Plaintiff was assaulted by Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett, the Court finds as a matter of law that inmate Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Wett are responsible for the assault In deciding the total fault of Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett, Plaintiff, and the City of New York, you will weigh the degree of fault of each and determine the responsibility of each of them for the incident. In your verdict you will state the percentage of fault, if any, of Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett, Plaintiff, and the City of New York. The total of these percentages must add up to 100 percent.Plaintiff has the burden of proving the fault of the City and/or Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett by a preponderance of the evidence. The City has the burden of proving by a preponderance of the evidence that Plaintiff and inmates Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett were at fault and the percentage of that fault.18.Criminal ConvictionsPlaintiff has been convicted of crimes. You may consider these convictions, along with other relevant evidence, in deciding whether the testimony of plaintiff is credible — whether the testimony is believable. In other words, these convictions may be used by you to determine whether the plaintiff has testified truthfully and in deciding how much weight to give plaintiff's testimony. See | Article 16 (modified)If you find that the City was at fault for the incident, you must next decide what part of the total fault of the group of inmates (Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett), Plaintiff, and the City of New York should bear. If you find that the Plaintiff was assaulted by Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett, the Court finds as a matter of law that inmate Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Wett are responsible for the assault In deciding the total fault of Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett, Plaintiff, and the City of New York, you will weigh the degree of fault of each and determine the responsibility of each of them for the incident. In your verdict you will state the percentage of fault, if any, of Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett, Plaintiff, and the City of New York. The total of these percentages must add up to 100 percent.Plaintiff has the burden of proving the fault of the City and/or Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett by a preponderance of the evidence. The City has the burden of proving by a preponderance of the evidence that Plaintiff and inmates Stephen Sealy, Damian Wright, Jaquan Forske, and Derrick Urett were at fault and the percentage of that fault.18.Criminal ConvictionsPlaintiff has been convicted of crimes. You may consider these convictions, along with other relevant evidence, in deciding whether the testimony of plaintiff is credible — whether the testimony is believable. In other words, these convictions may be used by you to determine whether the plaintiff has testified truthfully and in deciding how much weight to give plaintiff's testimony. See |
| .C. Case | CPLR 4513.C. Case |
| Documents available on | Documents available on |
| Westlaw | Westlaw2015 WL 2150316 (N.Y.Sup.) |
| (Jury Instruction), Defendant's Proposed Jury ChargesSample Westlaw Query for Trial Court documents in Similar Cases: adv: prisoner inmate incarcerat! and assaultResearch References1.Key | (Jury Instruction), Defendant's Proposed Jury ChargesSample Westlaw Query for Trial Court documents in Similar Cases: adv: prisoner inmate incarcerat! and assaultResearch References1.Key |
| Numbers , , | NumbersPrisons 126, 308, 313Trial 182 |
| to | to |
| 2.Westlaw | 2962.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and RulesChapter 13Contract and Quasi-ContractA. Finding The Applicable Law and Instructions§ 13:1NY PJI TablesB. Illustrative Cases§ 13:2Fraudulent inducement§ 13:3Trust indenture; breach of fiduciary duty§ 13:4Breach of contract for use of trademark§ 13:5Breach of contract: insurance coverage§ 13:6Contractual misrepresentation and conversion; sale of business§ 13:7Breach of contract and unjust enrichment/construction contract; owner suit against contractor§ 13:8Breach of contract for services rendered by brokerAppendix 13A. Outline of PJI Comments for ContractsKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 13:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Contracts, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Contracts | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyHospital Negligence: Legal and Administrative IssuesMedical Malpractice: Checklists & DiscoveryNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and RulesChapter 13Contract and Quasi-ContractA. Finding The Applicable Law and Instructions§ 13:1NY PJI TablesB. Illustrative Cases§ 13:2Fraudulent inducement§ 13:3Trust indenture; breach of fiduciary duty§ 13:4Breach of contract for use of trademark§ 13:5Breach of contract: insurance coverage§ 13:6Contractual misrepresentation and conversion; sale of business§ 13:7Breach of contract and unjust enrichment/construction contract; owner suit against contractor§ 13:8Breach of contract for services rendered by brokerAppendix 13A. Outline of PJI Comments for ContractsKeyCite®: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw®. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials.A. Finding The Applicable Law and Instructions§ 13:1 NY PJI TablesAs discussed in Part I of this book, NY PJI is a rich resource for legal research. Almost all pattern charges in NY PJI are accompanied by commentary. The comments vary in length, from less than a page to more than a hundred. Major divisions may include substantial introduction. Throughout Part II, NY PJI Companion Handbook summarizes the research topics for the convenience of the reader, complementing the more comprehensive Index of NY PJI.The following Table sets forth the content of NY PJI's coverage of Contracts, including Historical Revision Notes indicating when (after 2000) particular relevant provisions were revised or added.Contracts |
| [ | [PJI 4:1 |
| to | to |
| ](NY | 4:93.1](NY |
| PJI Volume 2)(“****” = See more detailed table of contents for Comment.)A.Generally1.Elements | PJI Volume 2)(“****” = See more detailed table of contents for Comment.)A.Generally1.Elements |
| () | (PJI 4:1) |
| ****2.Quasi Contracta.Restitution | ****2.Quasi Contracta.Restitution |
| ()b.Necessaries | (PJI 4:2)b.Necessaries |
| Supplied to a Dependent Child (PJI 4:3)c.Necessaries Supplied to Spouse | Supplied to a Dependent Child (PJI 4:3)c.Necessaries Supplied to Spouse |
| ()3.Consenta.Fraud | (PJI 4:4)3.Consenta.Fraud |
| in the Execution (4:10)****b.Mutual Mistake (4:11)4.Economic Duress (4:15)5.Damagesa.Generally (4:20–4:20.2)****b.Employment Contract (4:21)****B.Specific Contract Actions1.Contracts for Servicesa.Action for Services Rendered(1)By Attorney (4:30–4:30.1)****(2)By Broker (4:31)****(3)To Decedent (4:32)b.Action for Breach of Contract to Render Services (4:35)2.Warranty (4:40)3.Insurance Contracts with Introductory Statement***a.Oral Contracts and Binders (4:45)****b.Coverage(1)Fire Policy(a)Definitions (4:47)(b)Increase of Risk (4:48)(c)Amount of Recovery (4:49–4:49.1)(2)Accident Policy(a)Total and Permanent Disability (4:55–4:55.1)(b)Accidental Death (4:56)****(3)Life Policy — Suicide (4:57)(4)Liability Policy(a)Uninsured Motorist Endorsement (4:65)****(b)Judgment Creditor's Action Against Insurer (4:66)****(c)Excess Liability for Bad Faith Settlement or Failure to Settle (4:67) ****c.Defenses(1)Misrepresentation (4:75)(2)Breach of Warranty (4:76)(3)Failure to Give Notice (4:77)(4)Failure to Cooperate (4:78)(5)Waiver and Estoppel to Use (4:79)(6)Fraudulent Claim (4:80)4.Bank-Depositor Relationshipa.Wrongful Dishonor of Check (4:85)b.Payment Despite Stop Order (4:86)c.Forged or Altered Check(1)Bank's Duty (4:87)(2)Customer's Failure to Discover and Report (4:88)(3)Customer's Failure to Discover and Report — Checks Paid Subsequently (4:89)5.Bailor-Bailee Relationship (4:93–4:93.1)Historical Revision Notes:In 2000, | in the Execution (4:10)****b.Mutual Mistake (4:11)4.Economic Duress (4:15)5.Damagesa.Generally (4:20–4:20.2)****b.Employment Contract (4:21)****B.Specific Contract Actions1.Contracts for Servicesa.Action for Services Rendered(1)By Attorney (4:30–4:30.1)****(2)By Broker (4:31)****(3)To Decedent (4:32)b.Action for Breach of Contract to Render Services (4:35)2.Warranty (4:40)3.Insurance Contracts with Introductory Statement***a.Oral Contracts and Binders (4:45)****b.Coverage(1)Fire Policy(a)Definitions (4:47)(b)Increase of Risk (4:48)(c)Amount of Recovery (4:49–4:49.1)(2)Accident Policy(a)Total and Permanent Disability (4:55–4:55.1)(b)Accidental Death (4:56)****(3)Life Policy — Suicide (4:57)(4)Liability Policy(a)Uninsured Motorist Endorsement (4:65)****(b)Judgment Creditor's Action Against Insurer (4:66)****(c)Excess Liability for Bad Faith Settlement or Failure to Settle (4:67) ****c.Defenses(1)Misrepresentation (4:75)(2)Breach of Warranty (4:76)(3)Failure to Give Notice (4:77)(4)Failure to Cooperate (4:78)(5)Waiver and Estoppel to Use (4:79)(6)Fraudulent Claim (4:80)4.Bank-Depositor Relationshipa.Wrongful Dishonor of Check (4:85)b.Payment Despite Stop Order (4:86)c.Forged or Altered Check(1)Bank's Duty (4:87)(2)Customer's Failure to Discover and Report (4:88)(3)Customer's Failure to Discover and Report — Checks Paid Subsequently (4:89)5.Bailor-Bailee Relationship (4:93–4:93.1)Historical Revision Notes:In 2000, |
| PJI 4:3 |
| and | and |
| 4:75 |
| were revised.In 2002, | were revised.In 2002, |
| , , , , , , , , , , , , , , | PJI 4:2, 4:4, 4:30, 4:31, 4:32, 4:40, 4:48, 4:49, 4:49.1, 4:56, 4:77, 4:78, 4:79, 4:80, |
| and | and |
| 4:85 |
| were revised.In 2003, | were revised.In 2003, |
| , , , , , , , , , , , , | PJI 4:35, 4:45, 4:47, 4:55, 4:57, 4:65, 4:76, 4:86, 4:87, 4:88, 4:89, 4:93, |
| and | and |
| 4:93.1 |
| were revised, and | were revised, and |
| PJI 4:55.1 |
| was added.In 2004, | was added.In 2004, |
| PJI 4:10 |
| and | and |
| 4:11 |
| were revised.In 2009, | were revised.In 2009, |
| PJI 4:66 |
| and | and |
| 4:67 |
| were revised.In 2010, | were revised.In 2010, |
| PJI 4:20 |
| was revised.In 2011, | was revised.In 2011, |
| PJI 4:20.1 |
| and | and |
| 4:20.2 |
| were revised, and | were revised, and |
| PJI 4:20.3 |
| and | and |
| 4:20.4 |
| were added.In 2012, | were added.In 2012, |
| PJI 4:2 |
| was revised, and | was revised, and |
| PJI 4:2.1 |
| was added.In 2013, | was added.In 2013, |
| PJI 4:1 |
| and | and |
| 4:1.1 |
| were revised, and | were revised, and |
| PJI 4:1.2 |
| and | and |
| 4:1.3 |
| were added.In 2014, | were added.In 2014, |
| PJI 4:1.2 |
| and | and |
| 4:1.3 |
| were revised.B. Illustrative Cases§ 13:2 Fraudulent inducementAuthor's Comment: Following | were revised.B. Illustrative Cases§ 13:2 Fraudulent inducementAuthor's Comment: Following |
| PJI 4:1 |
| there is an extensive Comment on breach of contract, at 2B | there is an extensive Comment on breach of contract, at 2B |
| , | NY PJI2d 4:1, |
| at 2 to 145 (2018), the outline of which is reproduced in the Appendix to this Chapter.A. BackgroundType of Case: Breach of contractType of Damages: Compensatory damagesCase Name: Elie Laham a/k/a Elie Issa Laham, v. Bahia Mehmet bin Chambi a/k/a Bahia MehmetCourt: Supreme Court of New YorkJudge: Karla MoskowitzDocket Number: 601195/1999Verdict Date: March 22, 2005Outcome: Verdict for defendantBrief Summary of Facts: The plaintiff sought to recover damages for breach of contract, claiming that he and the defendant made a written agreement which provided that if the plaintiff paid $350,000 to the defendant's bank account in Nigeria by March 15, 1993, then the defendant would pay the plaintiff the total sum of $4,000,000 by March 19, 1993. The defendant interposed the defense of illegality, grounded in the violation a criminal usury statute, as well lack of consideration and fraud in the inducement. After the trial court's initial grant of summary judgment in favor of the plaintiff for $4 Million was overturned on appeal, a subsequent trial yielded a verdict for the defendant.B. Jury Instructions1. Instructions Given by the | at 2 to 145 (2018), the outline of which is reproduced in the Appendix to this Chapter.A. BackgroundType of Case: Breach of contractType of Damages: Compensatory damagesCase Name: Elie Laham a/k/a Elie Issa Laham, v. Bahia Mehmet bin Chambi a/k/a Bahia MehmetCourt: Supreme Court of New YorkJudge: Karla MoskowitzDocket Number: 601195/1999Verdict Date: March 22, 2005Outcome: Verdict for defendantBrief Summary of Facts: The plaintiff sought to recover damages for breach of contract, claiming that he and the defendant made a written agreement which provided that if the plaintiff paid $350,000 to the defendant's bank account in Nigeria by March 15, 1993, then the defendant would pay the plaintiff the total sum of $4,000,000 by March 19, 1993. The defendant interposed the defense of illegality, grounded in the violation a criminal usury statute, as well lack of consideration and fraud in the inducement. After the trial court's initial grant of summary judgment in favor of the plaintiff for $4 Million was overturned on appeal, a subsequent trial yielded a verdict for the defendant.B. Jury Instructions1. Instructions Given by the |
| Court1. . Introduction2. . | Court1. PJI 1:20. Introduction2. PJI 1:21. |
| Review Principles Stated (modified—transcript page 8—modified for handwriting expert)You will recall that a witness testified concerning his qualifications as a handwriting expert and gave his opinion concerning the handwriting in this case. When a case involves a matter of science or art or requires special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state his or her opinion for the information of the court and jury. The opinion(s) stated by (the, each) expert who testified before you (was, were) based on particular facts, as the expert obtained knowledge of them and testified to them before you, or as attorney(s) who questioned the expert asked the expert to assume. You may reject the expert's opinion if you find the facts to be different from those which formed the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion. In other words, you are not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualifications in the field warrant and must be considered by you, but is not controlling upon your | Review Principles Stated (modified—transcript page 8—modified for handwriting expert)You will recall that a witness testified concerning his qualifications as a handwriting expert and gave his opinion concerning the handwriting in this case. When a case involves a matter of science or art or requires special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state his or her opinion for the information of the court and jury. The opinion(s) stated by (the, each) expert who testified before you (was, were) based on particular facts, as the expert obtained knowledge of them and testified to them before you, or as attorney(s) who questioned the expert asked the expert to assume. You may reject the expert's opinion if you find the facts to be different from those which formed the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion. In other words, you are not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualifications in the field warrant and must be considered by you, but is not controlling upon your |
| judgment.3. . | judgment.3. PJI 1:22. |
| Falsus in | Falsus in |
| Uno4. . | Uno4. PJI 1:23. |
| Burden of | Burden of |
| Proof5. . | Proof5. PJI 1:60. |
| General Instruction—Burden of Proof—When Burden Differs on Different | General Instruction—Burden of Proof—When Burden Differs on Different |
| Issues6. . | Issues6. PJI 1:64. |
| General Instruction-Burden of Proof-Clear and Convincing Evidence (modified—transcript pages 9. 10—modified to reflect two operative burdens of proof)In this case we have two standards of burden of proof.The first on some issues is a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds.In order for a party to prevail on an issue on which he or she has the burden of proof by a preponderance of the evidence that supports his or her claim on that issue must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so evenly that you are unable to say that there is a preponderance on either side, you must decide the question against the party who has the burden of proof by a preponderance of the credible evidence and in favor of the opposing party.There is another standard of proof in this case. That is by clear and convincing evidence. This means evidence that satisfies you that there is a high degree of probability of the claim.To decide for the party that has the burden of proof by clear and convincing evidence it is not enough to find that the preponderance of the evidence is in that Party's favor. A party who must prove a case by a preponderance of the evidence only need satisfy you that the evidence supporting his or her case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish his or her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what he or she claims is what actually happened.If, upon all the evidence, you are satisfied that there is a high probability of that claim, you must decide for the party with the burden of proof those issues. If you are not satisfied that there is such a high probability, you must decide for the other party.In determining whether a party has met his or her burden of proof you may consider any of the evidence in the case, no matter who introduced | General Instruction-Burden of Proof-Clear and Convincing Evidence (modified—transcript pages 9. 10—modified to reflect two operative burdens of proof)In this case we have two standards of burden of proof.The first on some issues is a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds.In order for a party to prevail on an issue on which he or she has the burden of proof by a preponderance of the evidence that supports his or her claim on that issue must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so evenly that you are unable to say that there is a preponderance on either side, you must decide the question against the party who has the burden of proof by a preponderance of the credible evidence and in favor of the opposing party.There is another standard of proof in this case. That is by clear and convincing evidence. This means evidence that satisfies you that there is a high degree of probability of the claim.To decide for the party that has the burden of proof by clear and convincing evidence it is not enough to find that the preponderance of the evidence is in that Party's favor. A party who must prove a case by a preponderance of the evidence only need satisfy you that the evidence supporting his or her case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish his or her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what he or she claims is what actually happened.If, upon all the evidence, you are satisfied that there is a high probability of that claim, you must decide for the party with the burden of proof those issues. If you are not satisfied that there is such a high probability, you must decide for the other party.In determining whether a party has met his or her burden of proof you may consider any of the evidence in the case, no matter who introduced |
| it.7. . | it.7. PJI 4:10. |
| Contracts—Consent—Fraud In the Execution (modified—transcript page 14—modified to reflect related defense of fraud in the inducement, arising from alleged misrepresentation of document's effect as non-binding)Author's Comment: For a discussion of fraud in the inducement, see 2B | Contracts—Consent—Fraud In the Execution (modified—transcript page 14—modified to reflect related defense of fraud in the inducement, arising from alleged misrepresentation of document's effect as non-binding)Author's Comment: For a discussion of fraud in the inducement, see 2B |
| , | NY PJI2d 4:10, |
| at 175 (2018).Generally, a person who signs a written contract is bound to its terms. However, sometimes a person will not be bound by a written contract if the person's signature on the contract or agreement to the terms was induced through fraudulent misrepresentation.In this case, Bin Chambi claims that her agreement to the written contract was induced by a fraudulent misrepresentation by Laham. Specifically, while the parties agree that the written agreement calls for Bin Chambi to repay Laham $4 million upon receipt of $350,000, Bin Chambi claims that Laham told her this written agreement was not intended to be binding on them and that he would only show the writing to his brothers. and that she relied on his representations because of their long-term emotional and sexual relationship. Laham denies that he made any statement that the contract was not binding, or that it was only to show to his brothers.The burden of proof is on Bin Chambi to establish, by clear and convincing evidence, first, that Laham made a false representation of fact to her; and then that Bin Chambi believed and justifiably relied upon the statement and was induced by it to enter into the written agreement.The first question for you to determine, therefore, is what Laham said to Bin Chambi concerning this written agreement. If you find that Laham did not make any such statement regarding the binding effect of the written agreement, then you will find Bin Chambi has not proved that the statement was made.If you find that Laham stated in words or substance that the written contact was not binding and only to be shown to his brothers as a representation of fact, you will then determine whether Mehmet believed the representation, and acted in justifiable reliance upon it.Whether the person to whom a representation is made is justified in relying on it generally depends upon whether the fact represented is one that a reasonable person would consider important in reaching a decision in the transaction in question. However, even though it is not such a fact, reliance may be justified if the person making the representation knows that the person to whom it is made considers it important and will rely upon it. If you find that a reasonable person would not have considered a statement regarding the binding effect of the contract important in deciding whether to sign it, and that Laham did not know that Mehmet considered the fact important and would rely upon it, or if you find that Mehmet did not believe the representation or that even though she did, it was not a substantial factor in her decision to enter into the agreement, you will find for Laham.In determining whether or not Mehmet relied on the statement, and if her reliance was justified or reasonable, it is appropriate for you to consider the nature of their relationship, her personal characteristics, her level of sophistication or business knowledge, her ability to verify the accuracy of any statements independently, and her access to professional advice before signing the agreement. It is also appropriate for you to consider if the statements Mehmet claims to have relied upon, contradicted the explicit terms of the written agreement that she signed.If you find that a reasonable person would have considered a statement regarding the binding effect of the contract important in deciding whether to sign it, or that Laham knew that Bin Chambi considered the fact important and would rely upon it, and you further find that Bin Chambi believed the representation and her belief in that representation was a substantial factor in her decision to enter into the agreement, your finding on reliance will be for Bin Chambi.Thus, if you find that Ms. Bin Chambi signed the agreement because she believed justifiably relied in Mr. Laham's fraudulent representation, then the agreement is not valid and you will stop and return a verdict for defendant dismissing plaintiff's claim.On the other hand, if Ms. Bin Chambi fails to prove by clear and convincing evidence this defense then you will continue and consider her other | at 175 (2018).Generally, a person who signs a written contract is bound to its terms. However, sometimes a person will not be bound by a written contract if the person's signature on the contract or agreement to the terms was induced through fraudulent misrepresentation.In this case, Bin Chambi claims that her agreement to the written contract was induced by a fraudulent misrepresentation by Laham. Specifically, while the parties agree that the written agreement calls for Bin Chambi to repay Laham $4 million upon receipt of $350,000, Bin Chambi claims that Laham told her this written agreement was not intended to be binding on them and that he would only show the writing to his brothers. and that she relied on his representations because of their long-term emotional and sexual relationship. Laham denies that he made any statement that the contract was not binding, or that it was only to show to his brothers.The burden of proof is on Bin Chambi to establish, by clear and convincing evidence, first, that Laham made a false representation of fact to her; and then that Bin Chambi believed and justifiably relied upon the statement and was induced by it to enter into the written agreement.The first question for you to determine, therefore, is what Laham said to Bin Chambi concerning this written agreement. If you find that Laham did not make any such statement regarding the binding effect of the written agreement, then you will find Bin Chambi has not proved that the statement was made.If you find that Laham stated in words or substance that the written contact was not binding and only to be shown to his brothers as a representation of fact, you will then determine whether Mehmet believed the representation, and acted in justifiable reliance upon it.Whether the person to whom a representation is made is justified in relying on it generally depends upon whether the fact represented is one that a reasonable person would consider important in reaching a decision in the transaction in question. However, even though it is not such a fact, reliance may be justified if the person making the representation knows that the person to whom it is made considers it important and will rely upon it. If you find that a reasonable person would not have considered a statement regarding the binding effect of the contract important in deciding whether to sign it, and that Laham did not know that Mehmet considered the fact important and would rely upon it, or if you find that Mehmet did not believe the representation or that even though she did, it was not a substantial factor in her decision to enter into the agreement, you will find for Laham.In determining whether or not Mehmet relied on the statement, and if her reliance was justified or reasonable, it is appropriate for you to consider the nature of their relationship, her personal characteristics, her level of sophistication or business knowledge, her ability to verify the accuracy of any statements independently, and her access to professional advice before signing the agreement. It is also appropriate for you to consider if the statements Mehmet claims to have relied upon, contradicted the explicit terms of the written agreement that she signed.If you find that a reasonable person would have considered a statement regarding the binding effect of the contract important in deciding whether to sign it, or that Laham knew that Bin Chambi considered the fact important and would rely upon it, and you further find that Bin Chambi believed the representation and her belief in that representation was a substantial factor in her decision to enter into the agreement, your finding on reliance will be for Bin Chambi.Thus, if you find that Ms. Bin Chambi signed the agreement because she believed justifiably relied in Mr. Laham's fraudulent representation, then the agreement is not valid and you will stop and return a verdict for defendant dismissing plaintiff's claim.On the other hand, if Ms. Bin Chambi fails to prove by clear and convincing evidence this defense then you will continue and consider her other |
| defenses.8. . | defenses.8. PJI 4:1. |
| Contracts—Elements (modified—transcript page 16—modified to reflect defense of lack of consideration)Author's Comment: As to consideration, see generally 2B NY PJI2d 4:1, at 6 to 9 (2018), from which the first sentence of the charge below is apparently drawn.Consideration is some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. The Defendant alleges that the $350,000 that was deposited into the Merchant Banking Corporation in Lagos, Nigeria was done so for the Plaintiff's sole benefit and use and that those funds were withdrawn and used solely for the Plaintiff's benefit. Mr. Laham denies this and states he deposited $350,000 in the bank account. specified in the agreement dated march 13, 1993. The burden of proof on this defense is a preponderance of the evidence.If you find that defendant has proven, by a preponderance of the evidence, that the delivery of the $350,000 to the Merchant Banking Corporation in Lagos, Nigeria was for Laham's sole benefit and/or use, then Ms. Bin Chambi did not receive any consideration under the agreement and you must find the agreement invalid and find or the Defendant.On the other hand, if Ms. Bin Chambi fails to prove her contention that the delivery of $350,000 was solely for Mr. Laham's benefit or use, then she has failed to prove this | Contracts—Elements (modified—transcript page 16—modified to reflect defense of lack of consideration)Author's Comment: As to consideration, see generally 2B NY PJI2d 4:1, at 6 to 9 (2018), from which the first sentence of the charge below is apparently drawn.Consideration is some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. The Defendant alleges that the $350,000 that was deposited into the Merchant Banking Corporation in Lagos, Nigeria was done so for the Plaintiff's sole benefit and use and that those funds were withdrawn and used solely for the Plaintiff's benefit. Mr. Laham denies this and states he deposited $350,000 in the bank account. specified in the agreement dated march 13, 1993. The burden of proof on this defense is a preponderance of the evidence.If you find that defendant has proven, by a preponderance of the evidence, that the delivery of the $350,000 to the Merchant Banking Corporation in Lagos, Nigeria was for Laham's sole benefit and/or use, then Ms. Bin Chambi did not receive any consideration under the agreement and you must find the agreement invalid and find or the Defendant.On the other hand, if Ms. Bin Chambi fails to prove her contention that the delivery of $350,000 was solely for Mr. Laham's benefit or use, then she has failed to prove this |
| defense.9. . | defense.9. PJI 4:1. |
| Contracts—Elements (modified—transcript pages 17, 18—modified to reflect defense of illegality, based on violation of criminal usury statute, N.Y. Penal Law § 190.40)Author's Comment: For commentary on the defense of illegality, see 2B | Contracts—Elements (modified—transcript pages 17, 18—modified to reflect defense of illegality, based on violation of criminal usury statute, N.Y. Penal Law § 190.40)Author's Comment: For commentary on the defense of illegality, see 2B |
| , | NY PJI2d 4:1, |
| at 69 to 81 (2018).Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi., made a written agreement dated March 13, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Bin Chambi's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.It is Ms. Bin Chambi's position that the agreement sought to be enforced by Laham is illegal, null and void and therefore unenforceable. New York State Penal Law § 190.40 provides in relevant part that:“A person is guilty of criminal. . .when, not being authorized or permitted by law to do so, he knowingly charges, takes, or receives, any money or other property, as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per cent per annum or the equivalent rate for a longer or shorter period.”If you find that defendant proved by clear and convincing evidence the agreement sought to be enforced by Laham involves solely interest on a loan and seeks to charge an interest rate on the $350,000 loan in excess of twenty-five (25%) per annum and that Laham intended to charge interest at a rate exceeding 25% per annum, then you must find that the agreement at issue cannot be enforced by Laham in that it constitutes criminal usury and is void from its inception since it violates New York State Penal Law § 190.40.Intent here means intent to charge over 25% per annum & not intent to violate the law.If you find that the $350,000 was a loan and not an investment this section does apply. The usury law does not apply to repayment of investments or past due loans.However, even if you find by answering the questions that Mr. Laham intended to charge interest on a loan, you must consider whether Ms. Bin Chambi cannot rely on the defense of usury because you find she induced Mr. Laham to rely on the legality of the transaction through her special relationship to him. Here, the burden of proof is on Mr. Laham by a preponderance of the credible evidence to prove that he was induced to lend money to Ms. Bin Chambi based on their long term personal relationship and friendship, out of sympathy for her personal problems and urgent financial plight and relied on her superior knowledge and that she proposed the amount and terms of repayment. Ms. Bin Chambi denies that she used their relationship to induce him to lend her money.The basis of this principle of law is that this criminal usury statute should not apply to permit a borrower to profit and avoid a loan through her special relationship and by own proposal and by deception.If you find that Mr. Laham has failed to prove he was induced to lend her money at the usurious interest rate because of their long term relationship you will find the agreement void.On the other hand, if Mr. Laham proves by a preponderance of the evidence that he was induced to lend her money at the usurious interest rate because of their long term relationship then the agreement is valid and you will continue and consider whether Ms. Bin Chambi breached it.If, in light of the evidence and the other instructions, you find from the facts that there was a valid and binding contract formed between Laham that Bin Chambi, that Laham performed as required by the terms and conditions of the contract, and that Bin Chambi by a preponderance of the credible evidence failed or refused to perform as required by the terms and conditions of the contract, and then you will find Bin Chambi breached the contract.On the other hand, if you find there was an agreement and Laham performed as required by its terms but that Laham failed to prove by a preponderance of the credible evidence that Ms. Bin Chambi breached the agreement, you will answer no and have found for Ms. Bin | at 69 to 81 (2018).Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi., made a written agreement dated March 13, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Bin Chambi's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.It is Ms. Bin Chambi's position that the agreement sought to be enforced by Laham is illegal, null and void and therefore unenforceable. New York State Penal Law § 190.40 provides in relevant part that:“A person is guilty of criminal. . .when, not being authorized or permitted by law to do so, he knowingly charges, takes, or receives, any money or other property, as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per cent per annum or the equivalent rate for a longer or shorter period.”If you find that defendant proved by clear and convincing evidence the agreement sought to be enforced by Laham involves solely interest on a loan and seeks to charge an interest rate on the $350,000 loan in excess of twenty-five (25%) per annum and that Laham intended to charge interest at a rate exceeding 25% per annum, then you must find that the agreement at issue cannot be enforced by Laham in that it constitutes criminal usury and is void from its inception since it violates New York State Penal Law § 190.40.Intent here means intent to charge over 25% per annum & not intent to violate the law.If you find that the $350,000 was a loan and not an investment this section does apply. The usury law does not apply to repayment of investments or past due loans.However, even if you find by answering the questions that Mr. Laham intended to charge interest on a loan, you must consider whether Ms. Bin Chambi cannot rely on the defense of usury because you find she induced Mr. Laham to rely on the legality of the transaction through her special relationship to him. Here, the burden of proof is on Mr. Laham by a preponderance of the credible evidence to prove that he was induced to lend money to Ms. Bin Chambi based on their long term personal relationship and friendship, out of sympathy for her personal problems and urgent financial plight and relied on her superior knowledge and that she proposed the amount and terms of repayment. Ms. Bin Chambi denies that she used their relationship to induce him to lend her money.The basis of this principle of law is that this criminal usury statute should not apply to permit a borrower to profit and avoid a loan through her special relationship and by own proposal and by deception.If you find that Mr. Laham has failed to prove he was induced to lend her money at the usurious interest rate because of their long term relationship you will find the agreement void.On the other hand, if Mr. Laham proves by a preponderance of the evidence that he was induced to lend her money at the usurious interest rate because of their long term relationship then the agreement is valid and you will continue and consider whether Ms. Bin Chambi breached it.If, in light of the evidence and the other instructions, you find from the facts that there was a valid and binding contract formed between Laham that Bin Chambi, that Laham performed as required by the terms and conditions of the contract, and that Bin Chambi by a preponderance of the credible evidence failed or refused to perform as required by the terms and conditions of the contract, and then you will find Bin Chambi breached the contract.On the other hand, if you find there was an agreement and Laham performed as required by its terms but that Laham failed to prove by a preponderance of the credible evidence that Ms. Bin Chambi breached the agreement, you will answer no and have found for Ms. Bin |
| Chambi.10. . | Chambi.10. PJI 4:20. |
| Contracts—Damages—Generally (modified—transcript page 20)If you find for Laham in this action, you shall award Laham such damages as will reasonably compensate him for the losses he suffered. In determining such damages, you shall award Laham such damages as were directly and proximately caused by Ms. Bin Chambi's breach of contract by failing to pay the $4 million dollars, and which were within the contemplation of the parties in entering into the original agreement, proven by a preponderance of the credible | Contracts—Damages—Generally (modified—transcript page 20)If you find for Laham in this action, you shall award Laham such damages as will reasonably compensate him for the losses he suffered. In determining such damages, you shall award Laham such damages as were directly and proximately caused by Ms. Bin Chambi's breach of contract by failing to pay the $4 million dollars, and which were within the contemplation of the parties in entering into the original agreement, proven by a preponderance of the credible |
| evidence.11. . | evidence.11. PJI 1:26. |
| Five-Sixths | Five-Sixths |
| Verdict12. . | Verdict12. PJI 1:29. |
| Alternate | Alternate |
| Jurors13. . | Jurors13. PJI 1:28. |
| Conclusion2. Instructions Proposed By | Conclusion2. Instructions Proposed By |
| Defendant1. . | Defendant1. PJI 4:1. |
| Contracts—Elements (modified to reflect charging of excess interest as constituting defense of illegality based on violation of criminal usury statute)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 1 3, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehrnet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.It is the Defendant's position in this litigation that the agreement sought to be enforced by Laham is illegal, null and void and therefore unenforceable.New York State Penal Law § 190.40 provides in relevant part that:“A person is guilty of criminal. . .when, not being authorized or permitted by law to do so, he knowingly charges, takes, or receives, any money or other property, as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per cent per annum or the equivalent rate for a longer or shorter period.”If you find that the agreement sought to be enforced by Laham seeks to charge an interest rate on the $350,000 loan in excess of twenty-five (25%) per annum, then you must find for the Defendant because the agreement at issue cannot be enforced by the Plaintiff in that it constitutes criminal usury and is void ab initio (from its inception) since it violates New York State Penal Law | Contracts—Elements (modified to reflect charging of excess interest as constituting defense of illegality based on violation of criminal usury statute)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 1 3, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehrnet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.It is the Defendant's position in this litigation that the agreement sought to be enforced by Laham is illegal, null and void and therefore unenforceable.New York State Penal Law § 190.40 provides in relevant part that:“A person is guilty of criminal. . .when, not being authorized or permitted by law to do so, he knowingly charges, takes, or receives, any money or other property, as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per cent per annum or the equivalent rate for a longer or shorter period.”If you find that the agreement sought to be enforced by Laham seeks to charge an interest rate on the $350,000 loan in excess of twenty-five (25%) per annum, then you must find for the Defendant because the agreement at issue cannot be enforced by the Plaintiff in that it constitutes criminal usury and is void ab initio (from its inception) since it violates New York State Penal Law |
| § 190.40.2. . | § 190.40.2. PJI 4:1. |
| Contracts—Elements (modified to reflect charging of excess interest as constituting defense of illegality grounded in contract being void as against public policy of State)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 1 3, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehrnet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.It is the Defendant's position in this litigation that the agreement sought to be enforced by Laham is illegal, null and void and therefore unenforceable.New York State Penal Law § 190.40 provides in relevant part that:“A person is guilty of criminal. . .when, not being authorized or permitted by law to do so, he knowingly charges, takes, or receives, any money or other property, as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per cent per annum or the equivalent rate for a longer or shorter period.”If you find that the agreement sought to be enforced by Laham seeks to charge an interest rate on the $350,000 loan in excess of twenty-five (25%) per annum, then you must find that the agreement violates New York State Penal Law § 190.40 and is void ab initio (from its inception) and unenforceable as against the public policy of the State of New | Contracts—Elements (modified to reflect charging of excess interest as constituting defense of illegality grounded in contract being void as against public policy of State)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 1 3, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehrnet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.It is the Defendant's position in this litigation that the agreement sought to be enforced by Laham is illegal, null and void and therefore unenforceable.New York State Penal Law § 190.40 provides in relevant part that:“A person is guilty of criminal. . .when, not being authorized or permitted by law to do so, he knowingly charges, takes, or receives, any money or other property, as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per cent per annum or the equivalent rate for a longer or shorter period.”If you find that the agreement sought to be enforced by Laham seeks to charge an interest rate on the $350,000 loan in excess of twenty-five (25%) per annum, then you must find that the agreement violates New York State Penal Law § 190.40 and is void ab initio (from its inception) and unenforceable as against the public policy of the State of New |
| York.3. . | York.3. PJI 4:1. |
| Contracts—Elements (modified to reflect defense of unconscionability, as reflected in Brower v. Gateway 2000, 246 A.D.2d 246; 676 N.Y.S.2d 569 (1st Dep't 1998); Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1; 537 N.Y.S.2d 787 (1988), and Black's Law Dictionary, 6th Edition)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 1 3, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehmet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.An “unconscionable contract”, as used in these instructions, means a contract or any clause of a contract that is so grossly one-sided, unfair and oppressive to a party resulting from the stronger bargaining powers and/or undue influence, fraud or other improper conduct of the other party.If you find from the facts and other instructions that on its face, the contract or any portion of the contract between the Plaintiff and the Defendant to have been unconscionable at the time it was made, you may refuse to enforce the contract, or may enforce the remainder of the contract, if any, without the unconscionable portion.Author's Comment: The proposed instruction letting the jury decide whether the contract was so unconscionable as to be unenforceable was not adopted by the trial court. See 2B NY PJI2d 4:1, at 7 (2018), citing Blake v Biscardi, 62 A.D.2d 975, 403 N.Y.S.2d 544 (2d Dept. 1978), holding that the question of unconscionability is for the court, not the | Contracts—Elements (modified to reflect defense of unconscionability, as reflected in Brower v. Gateway 2000, 246 A.D.2d 246; 676 N.Y.S.2d 569 (1st Dep't 1998); Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1; 537 N.Y.S.2d 787 (1988), and Black's Law Dictionary, 6th Edition)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 1 3, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehmet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.An “unconscionable contract”, as used in these instructions, means a contract or any clause of a contract that is so grossly one-sided, unfair and oppressive to a party resulting from the stronger bargaining powers and/or undue influence, fraud or other improper conduct of the other party.If you find from the facts and other instructions that on its face, the contract or any portion of the contract between the Plaintiff and the Defendant to have been unconscionable at the time it was made, you may refuse to enforce the contract, or may enforce the remainder of the contract, if any, without the unconscionable portion.Author's Comment: The proposed instruction letting the jury decide whether the contract was so unconscionable as to be unenforceable was not adopted by the trial court. See 2B NY PJI2d 4:1, at 7 (2018), citing Blake v Biscardi, 62 A.D.2d 975, 403 N.Y.S.2d 544 (2d Dept. 1978), holding that the question of unconscionability is for the court, not the |
| jury.4. . | jury.4. PJI 4:1.1. |
| [Supplemental Charge] Contracts—Elements (modified to reflect requirement of mutual assent)The Plaintiff seeks to recover damages for breach of contract. The Plaintiff claims that he loaned the Defendant $350,000 on March 13, 1993 and that the Defendant, in consideration of that loan, agreed to pay him back the sum of $4,000,000 on March 19, 1993. However, the Defendant claims that she never made any such promise to the Plaintiff and that any such contract claimed by the Plaintiff can not be enforced.In order for the terms and conditions of any agreement to be binding on both of the parties, the parties must have had a meeting of the minds concerning the terms and conditions that are sought to be enforced. A “meeting of the minds”, as used in these instructions, means that there is some manifestation that the parties mutually knew and understood the terms and conditions which are subject to this litigation, and that the parties a) mutually intended, b) mutually assented, and c) mutually agreed that the terms and conditions would be binding upon them.In this case, the Defendant claims that the Plaintiff told her that this written agreement was not intended to be binding and that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions. The Plaintiff denies that he made any statement to the effect that the agreement was to be used for this sole purpose.If you find that the Plaintiff represented to the Defendant that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions, then you must find for the Defendant since there was no meeting of the minds between the parties that the contract would be binding or that the Defendant would pay the Plaintiff the sum of $4,000,000.If, therefore, you find from the facts that the parties had a meeting of the minds as to the essential terms and conditions of the contract, then you shall find that the contract is binding on the parties.Author's Comment: Generally, as to mutual assent, see 2B | [Supplemental Charge] Contracts—Elements (modified to reflect requirement of mutual assent)The Plaintiff seeks to recover damages for breach of contract. The Plaintiff claims that he loaned the Defendant $350,000 on March 13, 1993 and that the Defendant, in consideration of that loan, agreed to pay him back the sum of $4,000,000 on March 19, 1993. However, the Defendant claims that she never made any such promise to the Plaintiff and that any such contract claimed by the Plaintiff can not be enforced.In order for the terms and conditions of any agreement to be binding on both of the parties, the parties must have had a meeting of the minds concerning the terms and conditions that are sought to be enforced. A “meeting of the minds”, as used in these instructions, means that there is some manifestation that the parties mutually knew and understood the terms and conditions which are subject to this litigation, and that the parties a) mutually intended, b) mutually assented, and c) mutually agreed that the terms and conditions would be binding upon them.In this case, the Defendant claims that the Plaintiff told her that this written agreement was not intended to be binding and that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions. The Plaintiff denies that he made any statement to the effect that the agreement was to be used for this sole purpose.If you find that the Plaintiff represented to the Defendant that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions, then you must find for the Defendant since there was no meeting of the minds between the parties that the contract would be binding or that the Defendant would pay the Plaintiff the sum of $4,000,000.If, therefore, you find from the facts that the parties had a meeting of the minds as to the essential terms and conditions of the contract, then you shall find that the contract is binding on the parties.Author's Comment: Generally, as to mutual assent, see 2B |
| , | NY PJI2d 4:1, |
| at 3 to 4 | at 3 to 4 |
| (2018).5. . | (2018).5. PJI 4:10. |
| Contracts—Consent—Fraud In the Execution (modified to reflect defense of fraud in the inducement)Generally, a person who signs a document is bound to its terms whether she has read the document or not. However, there is an exception to that rule when the nature or contents of the document are intentionally misrepresented to her and she signs in reliance on that misrepresentation and under mistake as to the true nature or contents of that document.Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 13, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehmet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.The Defendant claims that her assent to the written contract was induced by a fraudulent misrepresentation by the Plaintiff. Specifically, she claims that the Plaintiff represented to her that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions.The Defendant has the burden of proving, by a fair preponderance of the evidence, that the Plaintiff represented to her that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions.If you find that the Plaintiff represented to the Defendant that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions and that the Defendant relied on that representation, then you must find for the Defendant. If you find that the Plaintiff did not make this representation to the Defendant or that although the Plaintiff did so represent, the Defendant did not rely on that representation in signing the document, you must find for the | Contracts—Consent—Fraud In the Execution (modified to reflect defense of fraud in the inducement)Generally, a person who signs a document is bound to its terms whether she has read the document or not. However, there is an exception to that rule when the nature or contents of the document are intentionally misrepresented to her and she signs in reliance on that misrepresentation and under mistake as to the true nature or contents of that document.Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 13, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehmet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.The Defendant claims that her assent to the written contract was induced by a fraudulent misrepresentation by the Plaintiff. Specifically, she claims that the Plaintiff represented to her that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions.The Defendant has the burden of proving, by a fair preponderance of the evidence, that the Plaintiff represented to her that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions.If you find that the Plaintiff represented to the Defendant that he would use that agreement solely for the purpose of showing it to his brothers in order to obtain the sum of $350,000 for use in connection with the Plaintiff's separate business transactions and that the Defendant relied on that representation, then you must find for the Defendant. If you find that the Plaintiff did not make this representation to the Defendant or that although the Plaintiff did so represent, the Defendant did not rely on that representation in signing the document, you must find for the |
| Plaintiff.6. . | Plaintiff.6. PJI 4:1.1. |
| [Supplemental Charge] Contracts—Elements (modified to reflect intent of the parties)The intent of the parties is determined by considering the relationship of the parties, what they said, what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent indicated by his or her words and acts may be | [Supplemental Charge] Contracts—Elements (modified to reflect intent of the parties)The intent of the parties is determined by considering the relationship of the parties, what they said, what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent indicated by his or her words and acts may be |
| considered.7. . | considered.7. PJI 4:1.1. |
| [Supplemental Charge] Contracts—Elements (modified to reflect requirement of consideration)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 13, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehmet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.Consideration is some right, interest, profit or benefit accruing to one party or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other. The Defendant alleges that the $350,000 that was deposited into the Merchant Banking Corporation in Lagos, Nigeria was done so for the Plaintiff's sole benefit and use and that those funds were withdrawn and used solely for the Plaintiff's benefit.If you find that the delivery of the $350,000 to the Merchant Banking Corporation in Lagos, Nigeria was for the Plaintiff's sole benefit and/or use, then the Defendant did not receive adequate consideration under the agreement and you must find for the Defendant.Author's Comment: The one-sentence definition of consideration above is the same as that contained in the Comment, 2B | [Supplemental Charge] Contracts—Elements (modified to reflect requirement of consideration)Plaintiff, Elie Issa Laham, seeks to recover damages for breach of contract. Laham claims that he and the Defendant, Bahia Mehmet Bin Chambi made a written agreement dated March 13, 1993. Laham claims that this agreement provides that if Laham paid $350,000 to Mehmet's bank account at the Merchant Banking Corporation in Lagos, Nigeria by March 15, 1993, then Mehmet would pay Laham the total sum of $4,000,000 by March 19, 1993.Consideration is some right, interest, profit or benefit accruing to one party or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other. The Defendant alleges that the $350,000 that was deposited into the Merchant Banking Corporation in Lagos, Nigeria was done so for the Plaintiff's sole benefit and use and that those funds were withdrawn and used solely for the Plaintiff's benefit.If you find that the delivery of the $350,000 to the Merchant Banking Corporation in Lagos, Nigeria was for the Plaintiff's sole benefit and/or use, then the Defendant did not receive adequate consideration under the agreement and you must find for the Defendant.Author's Comment: The one-sentence definition of consideration above is the same as that contained in the Comment, 2B |
| , | NY PJI2d 4:1, |
| at 6–7 (2018).C. Case Documents Available on Westlaw1.Order Affirming Judgment for Defendant on Jury Verdict, Laham v. Chambi, 34 A.D.3d 374, 824 N.Y.S.2d 641 (N.Y.A.D. 1 Dept. 2006)Order | at 6–7 (2018).C. Case Documents Available on Westlaw1.Order Affirming Judgment for Defendant on Jury Verdict, Laham v. Chambi, 34 A.D.3d 374, 824 N.Y.S.2d 641 (N.Y.A.D. 1 Dept. 2006)Order |
| Reversing |
| Summary Judgment to Plaintiff, Laham v. Chambi, 299 A.D.2d 151, 753 N.Y.S.2d 34 (N.Y.A.D. 1 Dept. 2002)Jury Instruction, 2005 WL 5544994Defendant's Proposed Jury Instruction, | Summary Judgment to Plaintiff, Laham v. Chambi, 299 A.D.2d 151, 753 N.Y.S.2d 34 (N.Y.A.D. 1 Dept. 2002)Jury Instruction, 2005 WL 5544994Defendant's Proposed Jury Instruction, |
| 2.Sample | 2005 WL 55449932.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: contract & illegality usury fraud inducementD. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: contract & illegality usury fraud inducementD. Research References1.Key |
| Numbers | NumbersContracts 94 |
| to | to |
| , | 96, 101 |
| to | to |
| 142Trial 182 |
| to | to |
| 2.Westlaw | 269Usury 102.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 13:3 Trust | 7:355§ 13:3 Trust |
| indenture; breach of fiduciary dutyA. BackgroundType of Case: Breach of fiduciary duty; breach of contractType of Injury: Damages from loss of value of bondsCase Name: Bluebird Partners, L.P. v. First Fidelity Bank N.A, et al.Court: Supreme Court of New YorkJudge: Ira GammermanDocket Number: Index No. 601365/97Verdict Date: December 12, 2003Outcome: Verdict for plaintiff of $54 million. Trial court's post-verdict judgment setting aside the verdict and dismissing the complaint was reversed on appeal (784 N.Y.S.2d 479 (N.Y.A.D. 1 Dept. 2004), the Appellate Division holding that the evidence was sufficient to support the jury's finding that the trustee's failure to timely move for relief from the bankruptcy stay was a substantial factor in causing the decline in value of the issuer's collateral.Brief Summary of Facts: The plaintiff invested money in bonds sold by Continental Air Lines under a trust indenture contract, and sought to collect money it asserted that it was entitled to under the terms of the indenture and the bonds. The plaintiff insisted that, during the time the airline was in bankruptcy, the defendants, as trustees under the indenture, failed to take certain steps during the bankruptcy proceeding to protect the bondholders from declining value of the bonds, thereby breaching their contractual obligations and violating their fiduciary duties. Specifically, the plaintiff contended that the defendants, by failing to file a relief from stay motion until 20 months after the bankruptcy began, failed to perform their duty to safeguard the value of collateral securing the bonds. The defendants, however, argued that they were not negligent in performing any duty they had to the bondholders; that any error of judgment was made in good faith in any event; and that any imprudence was, in any case, not the proximate cause of any loss suffered by the plaintiff.B. Jury Instructions1. Instructions Given by the Court—Written Interrogatories Accompanying General | indenture; breach of fiduciary dutyA. BackgroundType of Case: Breach of fiduciary duty; breach of contractType of Injury: Damages from loss of value of bondsCase Name: Bluebird Partners, L.P. v. First Fidelity Bank N.A, et al.Court: Supreme Court of New YorkJudge: Ira GammermanDocket Number: Index No. 601365/97Verdict Date: December 12, 2003Outcome: Verdict for plaintiff of $54 million. Trial court's post-verdict judgment setting aside the verdict and dismissing the complaint was reversed on appeal (784 N.Y.S.2d 479 (N.Y.A.D. 1 Dept. 2004), the Appellate Division holding that the evidence was sufficient to support the jury's finding that the trustee's failure to timely move for relief from the bankruptcy stay was a substantial factor in causing the decline in value of the issuer's collateral.Brief Summary of Facts: The plaintiff invested money in bonds sold by Continental Air Lines under a trust indenture contract, and sought to collect money it asserted that it was entitled to under the terms of the indenture and the bonds. The plaintiff insisted that, during the time the airline was in bankruptcy, the defendants, as trustees under the indenture, failed to take certain steps during the bankruptcy proceeding to protect the bondholders from declining value of the bonds, thereby breaching their contractual obligations and violating their fiduciary duties. Specifically, the plaintiff contended that the defendants, by failing to file a relief from stay motion until 20 months after the bankruptcy began, failed to perform their duty to safeguard the value of collateral securing the bonds. The defendants, however, argued that they were not negligent in performing any duty they had to the bondholders; that any error of judgment was made in good faith in any event; and that any imprudence was, in any case, not the proximate cause of any loss suffered by the plaintiff.B. Jury Instructions1. Instructions Given by the Court—Written Interrogatories Accompanying General |
| Verdict1. . | Verdict1. PJI 3:59. |
| Breach of Fiduciary Duty (modified—transcript pages 1 to 4. The following verdict form illustrates the type of written interrogatories that the judge may instruct the jury to employ in deciding a claim for breach of fiduciary duty under a contractual agreement requiring a trustee to protect the interests of beneficiaries, as in a trust indenture governing corporate bonds:)(1) Were the bonds purchased by or on behalf of the Gabriel and other entities purchased solely for the purpose of starting this law suit?YES ——— NO XIf the answer to question one is Yes you have decided this case in favor of the defendants and should omit all additional questions. If the answer to question one is No proceed to question two.(2) Did defendant First Fidelity breach its fiduciary duty to the bond holders by not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question two is Yes answer question three. If the answer to question two is No omit questions three and four.(3) Was that breach of fiduciary duty a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———If the answer to question three is Yes answer question four. If the answer to question three is No omit question four.(4) Set forth the amount of the loss sustained by the holders of the bonds that are the subject matter of this law suit (i.e. the bonds that are presently held by Bluebird).$ 54 million(5) Were employees of defendant First Fidelity negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question five is Yes answer question six. If the answer to question five is No omit questions six and seven.(6) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———If the answer to question six is Yes answer question seven. If the answer to question six is No omit question seven.(7) Set forth the amount of the loss sustained by the holders of the bonds that are the subject matter of this law suit (i.e. the bonds that are presently held by Bluebird).$ 54 millionAnswer question eight only if you answered either question four or seven or both. If not omit all additional questions.(8) Were employees of Midlantic Bank (First series trustee) negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question eight is Yes answer question nine. If the answer to question eight is No omit question nine.(9) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———(10) Were employees of United Jersey Bank (Second series trustee) negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question ten is Yes answer question eleven. If the answer to question ten is No omit question eleven.(11) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———(12) Were employees of First Interstate Bank (Third series trustee) negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question twelve is Yes answer question thirteen. If the answer to question twelve is No omit question thirteen.(13) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———Answer question fourteen only if you have answered Yes to question nine or eleven or thirteen, or two or all three of those questions. If not, omit question fourteen.(14) Set forth in terms of a percentage the extent to which the breach of fiduciary duty and /or the negligence of defendant First Fidelity and the negligence of one or more of the other Trustees contributed the decline in the value of the collateral. The two three or four percentages must total 100 percent.First Fidelity61 %Midlantic Bank13 %United Jersey Bank13 %First Interstate Bank13 % __________100 %2. Instructions Proposed By | Breach of Fiduciary Duty (modified—transcript pages 1 to 4. The following verdict form illustrates the type of written interrogatories that the judge may instruct the jury to employ in deciding a claim for breach of fiduciary duty under a contractual agreement requiring a trustee to protect the interests of beneficiaries, as in a trust indenture governing corporate bonds:)(1) Were the bonds purchased by or on behalf of the Gabriel and other entities purchased solely for the purpose of starting this law suit?YES ——— NO XIf the answer to question one is Yes you have decided this case in favor of the defendants and should omit all additional questions. If the answer to question one is No proceed to question two.(2) Did defendant First Fidelity breach its fiduciary duty to the bond holders by not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question two is Yes answer question three. If the answer to question two is No omit questions three and four.(3) Was that breach of fiduciary duty a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———If the answer to question three is Yes answer question four. If the answer to question three is No omit question four.(4) Set forth the amount of the loss sustained by the holders of the bonds that are the subject matter of this law suit (i.e. the bonds that are presently held by Bluebird).$ 54 million(5) Were employees of defendant First Fidelity negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question five is Yes answer question six. If the answer to question five is No omit questions six and seven.(6) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———If the answer to question six is Yes answer question seven. If the answer to question six is No omit question seven.(7) Set forth the amount of the loss sustained by the holders of the bonds that are the subject matter of this law suit (i.e. the bonds that are presently held by Bluebird).$ 54 millionAnswer question eight only if you answered either question four or seven or both. If not omit all additional questions.(8) Were employees of Midlantic Bank (First series trustee) negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question eight is Yes answer question nine. If the answer to question eight is No omit question nine.(9) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———(10) Were employees of United Jersey Bank (Second series trustee) negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question ten is Yes answer question eleven. If the answer to question ten is No omit question eleven.(11) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———(12) Were employees of First Interstate Bank (Third series trustee) negligent in not moving to lift the bankruptcy stay when a motion for adequate protection was initially made?YES X NO ———If the answer to question twelve is Yes answer question thirteen. If the answer to question twelve is No omit question thirteen.(13) Was that negligence a substantial factor in causing a decline in the value of the collateral and a loss by the bond holders?YES X NO ———Answer question fourteen only if you have answered Yes to question nine or eleven or thirteen, or two or all three of those questions. If not, omit question fourteen.(14) Set forth in terms of a percentage the extent to which the breach of fiduciary duty and /or the negligence of defendant First Fidelity and the negligence of one or more of the other Trustees contributed the decline in the value of the collateral. The two three or four percentages must total 100 percent.First Fidelity61 %Midlantic Bank13 %United Jersey Bank13 %First Interstate Bank13 % __________100 %2. Instructions Proposed By |
| Plaintiff1. . | Plaintiff1. PJI 1:20. |
| Introduction (modified to include statement of the parties' claims) The plaintiff Bluebird Partners, L.P., invested money in what are called equipment trust certificates, also known as bonds. The bonds were sold by Continental Air Lines under a contract known as a Trust Indenture. The plaintiff seeks to collect the money it is entitled to under the terms of the Indenture and the bonds. The defendants were the trustees under the Indenture. The plaintiff claims that during the time Continental Air Lines was in bankruptcy, the aircraft and engines that were the collateral for the bonds were declining in value, and the plaintiff claims that there were certain steps that the trustee-defendants should have taken during the bankruptcy proceeding to protect the bondholders from those declines in value. Plaintiff claims that in failing to take these steps, the trustees breached their contractual obligations, and were negligent in the performance of their duty which was to safeguard the value of the collateral that secured the bondholders' investment in the equipment trust. More specifically, plaintiff claims that by not filing a lift stay motion until twenty months after the Continental bankruptcy began, the trustees negligently forfeited the bondholders' right to receive money payments from Continental that they would otherwise have been entitled to. Thus, plaintiff claims that the trustees' breach of their contractual fiduciary duty prevented plaintiff from collecting what it was entitled to receive for its bonds.Defendants First Fidelity Bank, N.A., New Jersey, United Jersey Bank, NationsBank of Tennessee, N.A., and Constellation Bank, which later became known as Corestates/New Jersey National Bank, say that they were not negligent in the performance of any duty they had to the bondholders. They say they took all the steps that they reasonably could have or should have taken during the bankruptcy to protect the interests of the bondholders. And they say that if there was any error of judgment, it was made in good faith and without negligence in ascertaining the pertinent facts. In any event, defendants say that even if they were imprudent, that imprudence was not the proximate cause of any loss suffered by the plaintiff.With that summary in mind, the specific questions you have been called upon to answer in this case are: (1) whether any or all of the defendants failed to act reasonably and prudently in exercising their duties as trustees, and (2) whether such failure to act reasonably and prudently was the cause of any loss suffered. Another way of stating the issue is whether any or all of the defendants failed to act in accordance with what the law refers to as the “prudent person standard,” which I will explain to you in more detail later.Plaintiff has the burden of showing, by a preponderance of the evidence, that the defendants did not act in accordance with the prudent person standard. If you find that plaintiff has satisfied this burden, then you must also decide whether plaintiff has shown by a preponderance of the evidence that the trustees' imprudence was the cause of the plaintiff's loss. I will also explain the legal concept of “cause” to you later.Plaintiff seeks money in compensation for the injuries it alleges. More specifically, plaintiff seeks to recover the money that it alleges was lost when the trustees were imprudent in not taking the necessary steps to protect the bondholders' interest in the value of the collateral, which declined during the Continental bankruptcy proceedings. If you determine that the defendants' imprudence caused the plaintiff to sustain financial loss, you must also ascertain the amount of that loss, by assigning a dollar-figure to it. Because under New York law—as I will explain in more detail later—a person or company who has purchased bonds receives exactly the same claims or demands as the seller of the bonds, the plaintiff here has the right to recover money in compensation for such decline in value, whether or not it actually owned bonds at the time of the alleged injury, provided that it can prove that the trustees' imprudence caused the loss.Even if you find that plaintiff has satisfied its burden as to questions of imprudence and cause, the defendant trustees have raised certain affirmative defenses which, if proven, would bar plaintiff's right of recovery. I will explain more fully what an affirmative defense is and specifically which affirmative defenses have been raised. For now, it is sufficient to say that if the plaintiff has satisfied its burden as to the first two questions, that is, if the plaintiff has proven that the defendants were imprudent and that their imprudence caused plaintiff to lose money, you must determine whether each defendant has established by a preponderance of the evidence its affirmative | Introduction (modified to include statement of the parties' claims) The plaintiff Bluebird Partners, L.P., invested money in what are called equipment trust certificates, also known as bonds. The bonds were sold by Continental Air Lines under a contract known as a Trust Indenture. The plaintiff seeks to collect the money it is entitled to under the terms of the Indenture and the bonds. The defendants were the trustees under the Indenture. The plaintiff claims that during the time Continental Air Lines was in bankruptcy, the aircraft and engines that were the collateral for the bonds were declining in value, and the plaintiff claims that there were certain steps that the trustee-defendants should have taken during the bankruptcy proceeding to protect the bondholders from those declines in value. Plaintiff claims that in failing to take these steps, the trustees breached their contractual obligations, and were negligent in the performance of their duty which was to safeguard the value of the collateral that secured the bondholders' investment in the equipment trust. More specifically, plaintiff claims that by not filing a lift stay motion until twenty months after the Continental bankruptcy began, the trustees negligently forfeited the bondholders' right to receive money payments from Continental that they would otherwise have been entitled to. Thus, plaintiff claims that the trustees' breach of their contractual fiduciary duty prevented plaintiff from collecting what it was entitled to receive for its bonds.Defendants First Fidelity Bank, N.A., New Jersey, United Jersey Bank, NationsBank of Tennessee, N.A., and Constellation Bank, which later became known as Corestates/New Jersey National Bank, say that they were not negligent in the performance of any duty they had to the bondholders. They say they took all the steps that they reasonably could have or should have taken during the bankruptcy to protect the interests of the bondholders. And they say that if there was any error of judgment, it was made in good faith and without negligence in ascertaining the pertinent facts. In any event, defendants say that even if they were imprudent, that imprudence was not the proximate cause of any loss suffered by the plaintiff.With that summary in mind, the specific questions you have been called upon to answer in this case are: (1) whether any or all of the defendants failed to act reasonably and prudently in exercising their duties as trustees, and (2) whether such failure to act reasonably and prudently was the cause of any loss suffered. Another way of stating the issue is whether any or all of the defendants failed to act in accordance with what the law refers to as the “prudent person standard,” which I will explain to you in more detail later.Plaintiff has the burden of showing, by a preponderance of the evidence, that the defendants did not act in accordance with the prudent person standard. If you find that plaintiff has satisfied this burden, then you must also decide whether plaintiff has shown by a preponderance of the evidence that the trustees' imprudence was the cause of the plaintiff's loss. I will also explain the legal concept of “cause” to you later.Plaintiff seeks money in compensation for the injuries it alleges. More specifically, plaintiff seeks to recover the money that it alleges was lost when the trustees were imprudent in not taking the necessary steps to protect the bondholders' interest in the value of the collateral, which declined during the Continental bankruptcy proceedings. If you determine that the defendants' imprudence caused the plaintiff to sustain financial loss, you must also ascertain the amount of that loss, by assigning a dollar-figure to it. Because under New York law—as I will explain in more detail later—a person or company who has purchased bonds receives exactly the same claims or demands as the seller of the bonds, the plaintiff here has the right to recover money in compensation for such decline in value, whether or not it actually owned bonds at the time of the alleged injury, provided that it can prove that the trustees' imprudence caused the loss.Even if you find that plaintiff has satisfied its burden as to questions of imprudence and cause, the defendant trustees have raised certain affirmative defenses which, if proven, would bar plaintiff's right of recovery. I will explain more fully what an affirmative defense is and specifically which affirmative defenses have been raised. For now, it is sufficient to say that if the plaintiff has satisfied its burden as to the first two questions, that is, if the plaintiff has proven that the defendants were imprudent and that their imprudence caused plaintiff to lose money, you must determine whether each defendant has established by a preponderance of the evidence its affirmative |
| defense.2. . | defense.2. PJI 1:23. |
| Burden of | Burden of |
| Proof3. . | Proof3. PJI 4:1. |
| Contracts—Elements (modified to reflect contractual fiduciary duty)If, in light of the evidence and the other instructions, you find from the facts that the defendants did not perform as required by the terms and conditions of the contract, and that the plaintiff suffered damages as a result of the defendants' actions or failure to act, then you shall find for the plaintiff on its claim of breach of contract.I instruct you that a valid contract existed—the Indenture—that obligated the defendants to perform certain functions on behalf of the bondholders. I also remind you that under New York law a person or company who has purchased bonds receives exactly the same claims or demands as the seller of the bond. Thus, since a valid contract existed between the defendant trustees and the persons or entities from whom the plaintiff purchased the bonds at issue here, then the plaintiff inherited all rights and remedies under that contract that its sellers had, including the right to sue for breach. In determining whether the defendants failed to perform their contractual obligations, you may look to the terms of the Indenture, which imposes certain duties and obligations on the trustee defendants, including but not limited to an obligation to “use the same degree of care and skill in their exercise, as a prudent man would exercise under the circumstances in the conduct of his own affairs” in furtherance of the bondholders' interest. This is known as the “prudent person” standard. Under the prudent person standard, the trustees had a duty to the bondholders, including the plaintiff, to act prudently to safeguard the assets of the trust, and to maximize the bondholders' recovery from those assets.In determining whether a trustee's actions were prudent, the appropriate inquiry is whether (i) the trustee made an informed, well reasoned decision; and (ii) prudence dictated a different course of action that the trustee did not follow. Vigilant monitoring of the facts relevant to the decision is not enough to make a trustee prudent. It is what the trustee did or did not do as a result of its considerations that is relevant. Where a well-informed trustee would have perceived a risk of harm, the trustee breaches its duty if it chooses an alternative that does not protect against that harm. In some cases, prudence demands one course and one only, and a failure to follow that course will make the trustee liable. On the other hand, prudence will sometimes dictate more than one course or the other. In such instances the trustee can select without risk.The prudent person standard is to be applied in light of the circumstances as they existed at the time the trustee acted or failed to act. It is not automatically imprudent to choose a course of action that later turns out to be the wrong choice, provided that the trustee exercised the requisite care and skill in choosing and implementing that course of action.The indenture provides that the series trustees in certain circumstances have the right and power to direct the collateral trustee, which is to say First Fidelity, and then its successor, NationsBank, to take or not to take a particular action. I instruct you, however, that nothing in that provision or in any of the other provisions in the indenture relieved First Fidelity or NationsBank of their obligation to exercise prudently their right to seek their own remedies on behalf of the trust and to use the degree of care and skill in exercising those remedies that a prudent person would use.If you do find that the Trustees' failure to act prudently and reasonably to protect the rights of the bondholders was a breach of contractual duties owed to the bondholders under the Indenture, then you must also determine whether, as a result, the bondholders suffered financial loss. If so, then you must find that Bluebird is entitled to recovery for breach of contract as the current owner of those bonds and the claims that attach to the bonds.In order to find that the defendants' actions or inactions were the cause of plaintiff's losses, you must find that the risk reasonably could have been foreseen by the defendants. This does not require you to find that the precise event that caused the losses was foreseeable, but it is necessary to find that the event was one of a class of risks that was foreseeable. In other words, if the defendants' actions or inactions created or played a substantial role in increasing the risk that a particular harm to the plaintiff would occur, then it does not matter that the harm was caused by an unforeseen or unanticipated event so long as the event was within the class of risks foreseeable by the defendants.Author's Comment: | Contracts—Elements (modified to reflect contractual fiduciary duty)If, in light of the evidence and the other instructions, you find from the facts that the defendants did not perform as required by the terms and conditions of the contract, and that the plaintiff suffered damages as a result of the defendants' actions or failure to act, then you shall find for the plaintiff on its claim of breach of contract.I instruct you that a valid contract existed—the Indenture—that obligated the defendants to perform certain functions on behalf of the bondholders. I also remind you that under New York law a person or company who has purchased bonds receives exactly the same claims or demands as the seller of the bond. Thus, since a valid contract existed between the defendant trustees and the persons or entities from whom the plaintiff purchased the bonds at issue here, then the plaintiff inherited all rights and remedies under that contract that its sellers had, including the right to sue for breach. In determining whether the defendants failed to perform their contractual obligations, you may look to the terms of the Indenture, which imposes certain duties and obligations on the trustee defendants, including but not limited to an obligation to “use the same degree of care and skill in their exercise, as a prudent man would exercise under the circumstances in the conduct of his own affairs” in furtherance of the bondholders' interest. This is known as the “prudent person” standard. Under the prudent person standard, the trustees had a duty to the bondholders, including the plaintiff, to act prudently to safeguard the assets of the trust, and to maximize the bondholders' recovery from those assets.In determining whether a trustee's actions were prudent, the appropriate inquiry is whether (i) the trustee made an informed, well reasoned decision; and (ii) prudence dictated a different course of action that the trustee did not follow. Vigilant monitoring of the facts relevant to the decision is not enough to make a trustee prudent. It is what the trustee did or did not do as a result of its considerations that is relevant. Where a well-informed trustee would have perceived a risk of harm, the trustee breaches its duty if it chooses an alternative that does not protect against that harm. In some cases, prudence demands one course and one only, and a failure to follow that course will make the trustee liable. On the other hand, prudence will sometimes dictate more than one course or the other. In such instances the trustee can select without risk.The prudent person standard is to be applied in light of the circumstances as they existed at the time the trustee acted or failed to act. It is not automatically imprudent to choose a course of action that later turns out to be the wrong choice, provided that the trustee exercised the requisite care and skill in choosing and implementing that course of action.The indenture provides that the series trustees in certain circumstances have the right and power to direct the collateral trustee, which is to say First Fidelity, and then its successor, NationsBank, to take or not to take a particular action. I instruct you, however, that nothing in that provision or in any of the other provisions in the indenture relieved First Fidelity or NationsBank of their obligation to exercise prudently their right to seek their own remedies on behalf of the trust and to use the degree of care and skill in exercising those remedies that a prudent person would use.If you do find that the Trustees' failure to act prudently and reasonably to protect the rights of the bondholders was a breach of contractual duties owed to the bondholders under the Indenture, then you must also determine whether, as a result, the bondholders suffered financial loss. If so, then you must find that Bluebird is entitled to recovery for breach of contract as the current owner of those bonds and the claims that attach to the bonds.In order to find that the defendants' actions or inactions were the cause of plaintiff's losses, you must find that the risk reasonably could have been foreseen by the defendants. This does not require you to find that the precise event that caused the losses was foreseeable, but it is necessary to find that the event was one of a class of risks that was foreseeable. In other words, if the defendants' actions or inactions created or played a substantial role in increasing the risk that a particular harm to the plaintiff would occur, then it does not matter that the harm was caused by an unforeseen or unanticipated event so long as the event was within the class of risks foreseeable by the defendants.Author's Comment: |
| PJI 4:1 |
| is one of several pattern charges that are merely examples of charges that the parties themselves need to draft in order to make them | is one of several pattern charges that are merely examples of charges that the parties themselves need to draft in order to make them |
| case-specific.3. . | case-specific.3. PJI 3:59. |
| Breach of Fiduciary Duty (modified)A trustee is bound to employ such diligence and such prudence in the care and management of the trust as, in general, prudent persons of discretion and intelligence in such matters, employ in their own like affairs. This is the same “prudent person” standard that is imposed on the trustees under the Indenture, as we just discussed, but exists independent from that contract by virtue of the fiduciary duty that trustees owed to the investors they represent.Upon an event of default, such as the filing of bankruptcy, the law provides that a trustee is required to do the following: exercise such of the rights and powers vested in it by the trust indenture, and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Under the prudent person standard, the trustees had a duty to the bondholders, including the plaintiff, to act prudently to safeguard the assets of the trust, and to maximize the bondholders' recovery from those assets. This standard of conduct is also set forth in the Indenture, which is a form of contract that controls the Trustees' relationship to the bondholders.The standard of prudence that I just described in connection with the breach of contract claim is the same for the fiduciary duty claim.Author's Comment: But see 2A | Breach of Fiduciary Duty (modified)A trustee is bound to employ such diligence and such prudence in the care and management of the trust as, in general, prudent persons of discretion and intelligence in such matters, employ in their own like affairs. This is the same “prudent person” standard that is imposed on the trustees under the Indenture, as we just discussed, but exists independent from that contract by virtue of the fiduciary duty that trustees owed to the investors they represent.Upon an event of default, such as the filing of bankruptcy, the law provides that a trustee is required to do the following: exercise such of the rights and powers vested in it by the trust indenture, and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Under the prudent person standard, the trustees had a duty to the bondholders, including the plaintiff, to act prudently to safeguard the assets of the trust, and to maximize the bondholders' recovery from those assets. This standard of conduct is also set forth in the Indenture, which is a form of contract that controls the Trustees' relationship to the bondholders.The standard of prudence that I just described in connection with the breach of contract claim is the same for the fiduciary duty claim.Author's Comment: But see 2A |
| , | NY PJI2d 3:59, |
| at 646 (2018), stating, “There is no claim for breach of fiduciary duty where it is based on the same facts and theories as a breach of contract claim” (citations omitted). Recommended practice in submitting proposed jury charges is to support them with citations to authority if they are not drawn from pattern charges.If you find that the Trustees, in failing to protect the value of the Collateral after Continental's bankruptcy, did not exercise the same degree of care and skill that a prudent person would have exercised or used under the circumstances in the conduct of his own affairs, then you should find that the Trustees breached their fiduciary duty to plaintiff | at 646 (2018), stating, “There is no claim for breach of fiduciary duty where it is based on the same facts and theories as a breach of contract claim” (citations omitted). Recommended practice in submitting proposed jury charges is to support them with citations to authority if they are not drawn from pattern charges.If you find that the Trustees, in failing to protect the value of the Collateral after Continental's bankruptcy, did not exercise the same degree of care and skill that a prudent person would have exercised or used under the circumstances in the conduct of his own affairs, then you should find that the Trustees breached their fiduciary duty to plaintiff |
| Bluebird.4. . | Bluebird.4. PJI 2:70. |
| Proximate Cause—In General (modified to include contract claim as well as breach of fiduciary duty)Under the contract claim and the fiduciary duty claim, the plaintiff must also prove that the breach proximately caused its loss. In other words, the plaintiff must prove that by failing to meet the prudent person standard, the defendants proximately caused it to suffer harm. An injury is proximately caused by an act or omission whenever it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the act or omission.However, there may be a number of causes for a particular injury. Plaintiff is not required to prove that defendant's actions or inactions were the sole cause of the plaintiff's injury. Plaintiff meets its burden if it shows that defendants' actions or inactions substantially contributed to their loss, even though other factors may have also contributed significantly. Plaintiff is not required to show the defendants' activities were a greater cause of the injury than other factors.In addition, in order to find that the defendants' actions or inactions were the proximate cause of harm to the plaintiff, you must find that the risk reasonably could have been foreseen by the defendants. In this respect, it is not necessary to find that the precise event that caused the plaintiff's injury was foreseeable, but it is necessary to find that the event was one of a class of risks that was foreseeable. In other words, if the defendants' actions created or played a substantial role in increasing the risk that a particular harm to the plaintiff would occur—here, that adequate protection would be denied—then it does not matter that the harm was caused by an unforeseen or unanticipated event so long as the event was within the class of risks foreseeable by the defendants.The law does not require a plaintiff to prove with absolute certainty what would have happened but for the defendants' negligence. All a plaintiff need prove is that it would probably not have suffered injury but for that negligence. When the existence of some injury is certain but the only uncertainty is as to the amount, the plaintiff will not be denied a recovery of substantial damages.In considering whether the plaintiff has suffered any injury or whether defendants' acts or omissions were a proximate cause of injury to the plaintiff, you may not consider whether plaintiff relied on the defendants to undertake any action that plaintiff now alleges was imprudent. You may not consider whether plaintiff relied on the defendants to refrain from any action that plaintiff now alleges was imprudent. In other words, the defendants' duty of prudence is not qualified in any way by the concept of reliance by the plaintiff.[Omitted: instructions on | Proximate Cause—In General (modified to include contract claim as well as breach of fiduciary duty)Under the contract claim and the fiduciary duty claim, the plaintiff must also prove that the breach proximately caused its loss. In other words, the plaintiff must prove that by failing to meet the prudent person standard, the defendants proximately caused it to suffer harm. An injury is proximately caused by an act or omission whenever it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the act or omission.However, there may be a number of causes for a particular injury. Plaintiff is not required to prove that defendant's actions or inactions were the sole cause of the plaintiff's injury. Plaintiff meets its burden if it shows that defendants' actions or inactions substantially contributed to their loss, even though other factors may have also contributed significantly. Plaintiff is not required to show the defendants' activities were a greater cause of the injury than other factors.In addition, in order to find that the defendants' actions or inactions were the proximate cause of harm to the plaintiff, you must find that the risk reasonably could have been foreseen by the defendants. In this respect, it is not necessary to find that the precise event that caused the plaintiff's injury was foreseeable, but it is necessary to find that the event was one of a class of risks that was foreseeable. In other words, if the defendants' actions created or played a substantial role in increasing the risk that a particular harm to the plaintiff would occur—here, that adequate protection would be denied—then it does not matter that the harm was caused by an unforeseen or unanticipated event so long as the event was within the class of risks foreseeable by the defendants.The law does not require a plaintiff to prove with absolute certainty what would have happened but for the defendants' negligence. All a plaintiff need prove is that it would probably not have suffered injury but for that negligence. When the existence of some injury is certain but the only uncertainty is as to the amount, the plaintiff will not be denied a recovery of substantial damages.In considering whether the plaintiff has suffered any injury or whether defendants' acts or omissions were a proximate cause of injury to the plaintiff, you may not consider whether plaintiff relied on the defendants to undertake any action that plaintiff now alleges was imprudent. You may not consider whether plaintiff relied on the defendants to refrain from any action that plaintiff now alleges was imprudent. In other words, the defendants' duty of prudence is not qualified in any way by the concept of reliance by the plaintiff.[Omitted: instructions on |
| negligence]5. . | negligence]5. PJI 4:1. |
| Contracts—Elements (modified to reflect affirmative defense of reliance on advice of counsel)In this case the trustees assert the affirmative defense of reliance on advice of counsel. If you find that the plaintiff has not proven that the trustees were not prudent or the that the trustees conduct caused the plaintiff to suffer some injury in accordance with my instructions, then you need not consider this affirmative defense, since you will have already determined to render a verdict for the trustees. But if you find that the plaintiff has proven its case, you must then consider and pass upon the affirmative defense asserted by the trustees. The affirmative defense must be considered separately by you with respect to each defendant.The trustees bear the burden of proving by a preponderance of the evidence the elements of their affirmative defense. That means that once the plaintiff has satisfied its burden of proof on its claims, then the burden of proof shifts to defendants to prove that the weight of the evidence supports their affirmative defense.Defendants assert that they reasonably relied on the advice of counsel in choosing to act as they did during the Continental bankruptcy. In this instance, defendants have to prove that they actually received considered, and reasonably relied on the advice of counsel in choosing the various courses of action or inaction that they chose during the Continental bankruptcy. If you find that one or more of the trustees have proven reasonable reliance on the advice of counsel with respect to all of the conduct taken by that trustee during the Continental bankruptcy, then you must return a verdict for that trustee.When confronted with a question requiring specialized knowledge, a trustee may consult with an attorney and rely on that attorney's advice in choosing to act or not to act in a particular way. However, the element of advice of counsel is related to legal advice only. The trustees may not rely on the advice of its counsel for any business matter or any matter other than legal advice. Reliance on counsel's advice is only one factor that must be weighed in determining whether a defendant acted prudently. If that reliance was reasonable, then it supports a finding that that defendant acted as a prudent person under the circumstances, whether or not the advice of counsel turned out to be incorrect. On the other hand, if the reliance was unreasonable, then it does not support a finding that the defendant acted as a prudent person under the circumstances.In deciding whether the trustees reasonably relied on the advice of counsel, there are certain questions you should consider. First, was the advice in writing? The Indenture provides that the trustees may invoke reliance on advice of counsel as a defense against claims such as those raised by the plaintiff here, but the Indenture specifically refers to “written advice.” Whether the advice was in writing is also relevant to whether the defendant actually received the advice. A defendant could not have relied on advice it did not actually receive. Thus, each defendant must identify the advice it relied on. A defendant does not sustain its burden by the testimony of its officers that they generally recall relying on an attorney's advice, but cannot recall the specific advice. Nor does a defendant sustain its burden by pointing to the testimony of an attorney that he rendered advice, since such testimony cannot reveal what the defendant actually relied on. The defendants must also prove that they provided their counsel with the necessary factual information in order for counsel to form an informed opinion in giving that advice.I mentioned that the Indenture specifically refers to written advice of counsel. Oral advice is deemed to carry less weight than written advice because it has to be proved years after the events and is based only on the recollections of the parties. Nor can a trustee rely in good faith on statements that contain no analysis of the supporting reasons for the advice.Another factor to consider in weighing the defense of reliance on advice of counsel is whether the defendant identified specific advice given by the attorney. The more specific the advice—that is, the more closely it relates to the course of action taken by the defendant—the more it would support a finding that the defendant was reasonable in relying on that advice to justify its course of action. On the other hand, the more general or ambiguous the advice—that is, the less it relates to the specific course of action taken by the defendant—the less it supports a finding that the defendant was reasonable in relying on it to justify a chosen course of action. In determining whether the advice at issue meets this standard, you may consider whether the defendant received carefully considered legal advice on each of the issues that are relevant to the decision at issue, and whether the advice was communicated in such a manner that the defendant could review the advice and deliberate over the advice.The trustees cannot establish the reliance on advice of counsel defense simply by showing that their attorney identified the issues that the trustees needed to consider. This is to say that the trustees may not simply turn over their decision-making obligations to their attorneys without bringing their own judgment and analysis to the facts and circumstances. Here, for example, you may determine that a reasonably prudent trustee may very well have concluded that it was wise to move to lift the stay, even though his attorney thought that such a motion was legally ill-founded. On the other hand, the trustee may have found that the risk of such a motion outweighed the potential benefits.The issue finally is this: did the trustees weigh or examine the advice before following it? A trustee has a duty to examine an opinion of its attorneys so far as the ability of a reasonably intelligent man would permit, and then to decide for itself, to the extent possible, whether that advice is sound and whether following the advice is the reasonable thing to do under the circumstances. In other words, simply because a trustee actually receives specific advice from an attorney does not necessarily mean that the trustee acted reasonably in relying on that advice. Even after receiving seemingly authoritative and comprehensive advice of counsel, a trustee still has a duty to weigh the risks and advantages of the course of action the advice relates to, and make a business decision about whether the advantages justify the potential risks. Thus, whether the trustee's reliance on its attorney's advice was reasonable is a question of fact for you to decide.Author's Comment: Recommended practice would be to include citations to authority for charge requests not drawn from NY | Contracts—Elements (modified to reflect affirmative defense of reliance on advice of counsel)In this case the trustees assert the affirmative defense of reliance on advice of counsel. If you find that the plaintiff has not proven that the trustees were not prudent or the that the trustees conduct caused the plaintiff to suffer some injury in accordance with my instructions, then you need not consider this affirmative defense, since you will have already determined to render a verdict for the trustees. But if you find that the plaintiff has proven its case, you must then consider and pass upon the affirmative defense asserted by the trustees. The affirmative defense must be considered separately by you with respect to each defendant.The trustees bear the burden of proving by a preponderance of the evidence the elements of their affirmative defense. That means that once the plaintiff has satisfied its burden of proof on its claims, then the burden of proof shifts to defendants to prove that the weight of the evidence supports their affirmative defense.Defendants assert that they reasonably relied on the advice of counsel in choosing to act as they did during the Continental bankruptcy. In this instance, defendants have to prove that they actually received considered, and reasonably relied on the advice of counsel in choosing the various courses of action or inaction that they chose during the Continental bankruptcy. If you find that one or more of the trustees have proven reasonable reliance on the advice of counsel with respect to all of the conduct taken by that trustee during the Continental bankruptcy, then you must return a verdict for that trustee.When confronted with a question requiring specialized knowledge, a trustee may consult with an attorney and rely on that attorney's advice in choosing to act or not to act in a particular way. However, the element of advice of counsel is related to legal advice only. The trustees may not rely on the advice of its counsel for any business matter or any matter other than legal advice. Reliance on counsel's advice is only one factor that must be weighed in determining whether a defendant acted prudently. If that reliance was reasonable, then it supports a finding that that defendant acted as a prudent person under the circumstances, whether or not the advice of counsel turned out to be incorrect. On the other hand, if the reliance was unreasonable, then it does not support a finding that the defendant acted as a prudent person under the circumstances.In deciding whether the trustees reasonably relied on the advice of counsel, there are certain questions you should consider. First, was the advice in writing? The Indenture provides that the trustees may invoke reliance on advice of counsel as a defense against claims such as those raised by the plaintiff here, but the Indenture specifically refers to “written advice.” Whether the advice was in writing is also relevant to whether the defendant actually received the advice. A defendant could not have relied on advice it did not actually receive. Thus, each defendant must identify the advice it relied on. A defendant does not sustain its burden by the testimony of its officers that they generally recall relying on an attorney's advice, but cannot recall the specific advice. Nor does a defendant sustain its burden by pointing to the testimony of an attorney that he rendered advice, since such testimony cannot reveal what the defendant actually relied on. The defendants must also prove that they provided their counsel with the necessary factual information in order for counsel to form an informed opinion in giving that advice.I mentioned that the Indenture specifically refers to written advice of counsel. Oral advice is deemed to carry less weight than written advice because it has to be proved years after the events and is based only on the recollections of the parties. Nor can a trustee rely in good faith on statements that contain no analysis of the supporting reasons for the advice.Another factor to consider in weighing the defense of reliance on advice of counsel is whether the defendant identified specific advice given by the attorney. The more specific the advice—that is, the more closely it relates to the course of action taken by the defendant—the more it would support a finding that the defendant was reasonable in relying on that advice to justify its course of action. On the other hand, the more general or ambiguous the advice—that is, the less it relates to the specific course of action taken by the defendant—the less it supports a finding that the defendant was reasonable in relying on it to justify a chosen course of action. In determining whether the advice at issue meets this standard, you may consider whether the defendant received carefully considered legal advice on each of the issues that are relevant to the decision at issue, and whether the advice was communicated in such a manner that the defendant could review the advice and deliberate over the advice.The trustees cannot establish the reliance on advice of counsel defense simply by showing that their attorney identified the issues that the trustees needed to consider. This is to say that the trustees may not simply turn over their decision-making obligations to their attorneys without bringing their own judgment and analysis to the facts and circumstances. Here, for example, you may determine that a reasonably prudent trustee may very well have concluded that it was wise to move to lift the stay, even though his attorney thought that such a motion was legally ill-founded. On the other hand, the trustee may have found that the risk of such a motion outweighed the potential benefits.The issue finally is this: did the trustees weigh or examine the advice before following it? A trustee has a duty to examine an opinion of its attorneys so far as the ability of a reasonably intelligent man would permit, and then to decide for itself, to the extent possible, whether that advice is sound and whether following the advice is the reasonable thing to do under the circumstances. In other words, simply because a trustee actually receives specific advice from an attorney does not necessarily mean that the trustee acted reasonably in relying on that advice. Even after receiving seemingly authoritative and comprehensive advice of counsel, a trustee still has a duty to weigh the risks and advantages of the course of action the advice relates to, and make a business decision about whether the advantages justify the potential risks. Thus, whether the trustee's reliance on its attorney's advice was reasonable is a question of fact for you to decide.Author's Comment: Recommended practice would be to include citations to authority for charge requests not drawn from NY |
| PJI.6. . | PJI.6. PJI 4:20. |
| Contracts—Damages—Generally (modified to reflect failure to carry out obligations to bondholders under terms of indenture)My charge to you on the law of damages must not be taken as a suggestion that you should find for the plaintiff. It is for you to decide on the evidence presented and the rules of law I have given you whether the plaintiff is entitled to recover from the defendants. If you decide that the plaintiff is not entitled to recover from the defendants, you need not consider damages. Only if you decide that the plaintiff is entitled to recover will you consider the measure of damages.In an action for breach of contract or fiduciary duty, the injured party is entitled to the benefit of his bargain and is entitled to damages for the loss caused by the defendants' failure to perform. In this case, if you find that defendants failed to carry out their obligations to the bondholders under the terms of the Indenture, then plaintiff is entitled to recover the full amount of the diminution in plaintiff's recovery on its Certificates that was caused by the | Contracts—Damages—Generally (modified to reflect failure to carry out obligations to bondholders under terms of indenture)My charge to you on the law of damages must not be taken as a suggestion that you should find for the plaintiff. It is for you to decide on the evidence presented and the rules of law I have given you whether the plaintiff is entitled to recover from the defendants. If you decide that the plaintiff is not entitled to recover from the defendants, you need not consider damages. Only if you decide that the plaintiff is entitled to recover will you consider the measure of damages.In an action for breach of contract or fiduciary duty, the injured party is entitled to the benefit of his bargain and is entitled to damages for the loss caused by the defendants' failure to perform. In this case, if you find that defendants failed to carry out their obligations to the bondholders under the terms of the Indenture, then plaintiff is entitled to recover the full amount of the diminution in plaintiff's recovery on its Certificates that was caused by the |
| defendants.7. . | defendants.7. PJI 2:277. |
| Damages—General (modified to reflect trustee's imprudence or negligence)If you find, either alternatively or in addition, that plaintiff is entitled to recover from the Trustees because they were imprudent or negligent, you must render a verdict in a sum of money that will justly and fairly compensate plaintiff for all losses resulting from injuries it sustained. In this case, you need to determine the full amount of the diminution in plaintiff's recovery on its bonds that was caused by the defendants, and whether plaintiff is entitled to recover for any interest that plaintiff would have earned on those funds if it had received them at the time of the effective date of Continental's bankruptcy plan of reorganization.Where a defendant causes a loss and the defendant's conduct has rendered it impossible or difficult to establish the amount of damages, the burden of uncertainty as to damages falls upon the defendant. The test is whether the plaintiff has presented evidence that has any tendency to show their probable amount.You will also need to determine how much of that loss on the value of the bonds is attributable to each defendant. In this respect, you will recall that First Fidelity was the initial Collateral Trustee and was later replaced by NationsBank. If you find that First Fidelity's acts or omissions caused loss to the plaintiff, you must determine whether its conduct set in place a course of events that continued to cause harm even after it was replaced or whether the replacement was an intervening event that brought an end to any further liability to First Fidelity. You must then determine how much of the diminution in the recovery that plaintiff suffered was caused by First Fidelity's conduct. As to the other defendants, Constellation Bank was the First Series Trustee from late September 1991 through the end of the bankruptcy. And United Jersey Bank was the Second Series Trustee from the beginning of the bankruptcy through October 1992. You must also determine how much of plaintiff's loss, if any, is attributable to the conduct of Constellation as First Series Trustee from late September 1991 forward and how much, if any, was caused by United Jersey Bank as Second Series Trustee during its tenure. Finally, you must determine how much loss, if any, was caused by NationsBank from the time that it took over as Collateral Trustee.In calculating plaintiff's damages, it is irrelevant that plaintiff purchased its bonds after the bankruptcy had already begun. As I previously instructed you, when plaintiff purchased its certificates, any claims that the prior owners of those certificates had against the defendants under the indenture were transferred with the certificates to plaintiff, regardless of whether the seller knew or did not know of such claims, and regardless of whether plaintiff knew or did not know of such claims. Therefore, what plaintiff knew or did not know about the defendants' action or inactions at the time it purchased the certificates cannot constitute a defense to this action.More specifically, this means that you may not conclude that plaintiff suffered no loss or damage for the sole reason that the trustees' imprudent acts took place before the plaintiff's bond purchases. I instruct you that because plaintiff inherited all claims and demands of prior certificate owners when it purchased its certificates, it is irrelevant whether plaintiff purchased its certificates after the alleged imprudent conduct had already occurred or begun to occur. Because those purchases transferred all claims and demands that the sellers held before the sales to the plaintiff, including any claims or demands that they may have acquired from any prior sellers, the plaintiff effectively stands in the sellers' shoes for the purposes of this lawsuit, and is entitled to recover for any loss that the defendants' imprudence proximately caused at any time, regardless of who actually held the bonds at that time.Author's Comment: This charge request is consistent with the commentary, which states that | Damages—General (modified to reflect trustee's imprudence or negligence)If you find, either alternatively or in addition, that plaintiff is entitled to recover from the Trustees because they were imprudent or negligent, you must render a verdict in a sum of money that will justly and fairly compensate plaintiff for all losses resulting from injuries it sustained. In this case, you need to determine the full amount of the diminution in plaintiff's recovery on its bonds that was caused by the defendants, and whether plaintiff is entitled to recover for any interest that plaintiff would have earned on those funds if it had received them at the time of the effective date of Continental's bankruptcy plan of reorganization.Where a defendant causes a loss and the defendant's conduct has rendered it impossible or difficult to establish the amount of damages, the burden of uncertainty as to damages falls upon the defendant. The test is whether the plaintiff has presented evidence that has any tendency to show their probable amount.You will also need to determine how much of that loss on the value of the bonds is attributable to each defendant. In this respect, you will recall that First Fidelity was the initial Collateral Trustee and was later replaced by NationsBank. If you find that First Fidelity's acts or omissions caused loss to the plaintiff, you must determine whether its conduct set in place a course of events that continued to cause harm even after it was replaced or whether the replacement was an intervening event that brought an end to any further liability to First Fidelity. You must then determine how much of the diminution in the recovery that plaintiff suffered was caused by First Fidelity's conduct. As to the other defendants, Constellation Bank was the First Series Trustee from late September 1991 through the end of the bankruptcy. And United Jersey Bank was the Second Series Trustee from the beginning of the bankruptcy through October 1992. You must also determine how much of plaintiff's loss, if any, is attributable to the conduct of Constellation as First Series Trustee from late September 1991 forward and how much, if any, was caused by United Jersey Bank as Second Series Trustee during its tenure. Finally, you must determine how much loss, if any, was caused by NationsBank from the time that it took over as Collateral Trustee.In calculating plaintiff's damages, it is irrelevant that plaintiff purchased its bonds after the bankruptcy had already begun. As I previously instructed you, when plaintiff purchased its certificates, any claims that the prior owners of those certificates had against the defendants under the indenture were transferred with the certificates to plaintiff, regardless of whether the seller knew or did not know of such claims, and regardless of whether plaintiff knew or did not know of such claims. Therefore, what plaintiff knew or did not know about the defendants' action or inactions at the time it purchased the certificates cannot constitute a defense to this action.More specifically, this means that you may not conclude that plaintiff suffered no loss or damage for the sole reason that the trustees' imprudent acts took place before the plaintiff's bond purchases. I instruct you that because plaintiff inherited all claims and demands of prior certificate owners when it purchased its certificates, it is irrelevant whether plaintiff purchased its certificates after the alleged imprudent conduct had already occurred or begun to occur. Because those purchases transferred all claims and demands that the sellers held before the sales to the plaintiff, including any claims or demands that they may have acquired from any prior sellers, the plaintiff effectively stands in the sellers' shoes for the purposes of this lawsuit, and is entitled to recover for any loss that the defendants' imprudence proximately caused at any time, regardless of who actually held the bonds at that time.Author's Comment: This charge request is consistent with the commentary, which states that |
| PJI 2:277 |
| “is not intended for use by itself; rather it should be followed by the statement of the specific measure of damage rules applicable to the particular case.” 1B | “is not intended for use by itself; rather it should be followed by the statement of the specific measure of damage rules applicable to the particular case.” 1B |
| , | NY PJI3d 2:277, |
| at 862 (2018). For a discussion of damages for breach of fiduciary duty, see 2A NY PJI2d 3:59, at 669 to 671 (2018).[Omitted: instructions on principles of bankruptcy relating to automatic stay]C. Case Documents Available on Westlaw1.Trial Motion, Memorandum and Affidavit, 2005 WL 5353712Appellate Judgment, Bluebird Partners, L.P. v. First Fidelity Bank, N.A., N.J., 11 A.D.3d 232, 784 N.Y.S.2d 479 (N.Y.A.D. 1 Dept. 2004)Trial Motion, Memorandum and Affidavit, 2003 WL 24288600Verdict, Agreement and Settlement, 2002 WL 32994436Expert Trial Transcript, | at 862 (2018). For a discussion of damages for breach of fiduciary duty, see 2A NY PJI2d 3:59, at 669 to 671 (2018).[Omitted: instructions on principles of bankruptcy relating to automatic stay]C. Case Documents Available on Westlaw1.Trial Motion, Memorandum and Affidavit, 2005 WL 5353712Appellate Judgment, Bluebird Partners, L.P. v. First Fidelity Bank, N.A., N.J., 11 A.D.3d 232, 784 N.Y.S.2d 479 (N.Y.A.D. 1 Dept. 2004)Trial Motion, Memorandum and Affidavit, 2003 WL 24288600Verdict, Agreement and Settlement, 2002 WL 32994436Expert Trial Transcript, |
| Jury | 2002 WL 32995636Jury |
| Instruction, 2002 WL 32994447Answer and Affirmative Defenses of Defendants, 1998 WL 34373563Docket, 0601365/1997Expert Trial Transcript, 1997 WL 33833344Expert Trial Transcript, | Instruction, 2002 WL 32994447Answer and Affirmative Defenses of Defendants, 1998 WL 34373563Docket, 0601365/1997Expert Trial Transcript, 1997 WL 33833344Expert Trial Transcript, |
| 2.Sample | 1997 WL 338333452.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: bankruptcy & (indenture trustee bondholder /p negligen! impruden! breach)D. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: bankruptcy & (indenture trustee bondholder /p negligen! impruden! breach)D. Research References1.Key |
| Numbers | NumbersTrial 182 |
| to | to |
| , 2.Westlaw | 269Trusts 179, 1822.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 13:4 Breach | 7:355§ 13:4 Breach |
| of contract for use of trademarkA. BackgroundType of Case: Breach of service agreementType of Damages: Compensatory damages, including lost profitsCase Name: Heary Bros. Lightning Protection Co., Inc. and Lightning Preventor of America v. Intertek Testing Services, N.A., Inc.Court: Supreme Court of New YorkJudge: Joseph G. MakowskiDocket Number: 98-6387Verdict Date: July 9, 2001Outcome: Verdict for plaintiff of $2,208,360 for lost profits. However, the Appellate Division | of contract for use of trademarkA. BackgroundType of Case: Breach of service agreementType of Damages: Compensatory damages, including lost profitsCase Name: Heary Bros. Lightning Protection Co., Inc. and Lightning Preventor of America v. Intertek Testing Services, N.A., Inc.Court: Supreme Court of New YorkJudge: Joseph G. MakowskiDocket Number: 98-6387Verdict Date: July 9, 2001Outcome: Verdict for plaintiff of $2,208,360 for lost profits. However, the Appellate Division |
| () | (780 N.Y.S.2d 691) |
| upheld the trial court's order to | upheld the trial court's order to |
| set aside |
| award of damages and grant a new trial on damages unless the defendant stipulated to a reduced award of $410,000. The Court of Appeals affirmed (830 N.E.2d 298), ruling that defendant laboratory's breach of contract to test and certify the manufacturer's products did not support a claim for those lost profit damages that occurred after the date that a proposed industry standard for the products was finally rejected.Brief Summary of Facts: The plaintiff, a manufacturer, sued an independent testing laboratory to recover profits allegedly lost as a result of the laboratory's breach of an agreement to permit the plaintiff to use the laboratory's trademark on products complying with industry standard. The plaintiff asserted causes of action for, among other claims, breach of contract and violation of the Donnelly Antitrust Act (N.Y. Gen Business Law § 340). The defendant laboratory asserted counterclaims for breach of contract and violation of the Lanham Act (15 U.S.C.A. § 1125(a)).B. Jury Instructions1. Instructions Proposed By | award of damages and grant a new trial on damages unless the defendant stipulated to a reduced award of $410,000. The Court of Appeals affirmed (830 N.E.2d 298), ruling that defendant laboratory's breach of contract to test and certify the manufacturer's products did not support a claim for those lost profit damages that occurred after the date that a proposed industry standard for the products was finally rejected.Brief Summary of Facts: The plaintiff, a manufacturer, sued an independent testing laboratory to recover profits allegedly lost as a result of the laboratory's breach of an agreement to permit the plaintiff to use the laboratory's trademark on products complying with industry standard. The plaintiff asserted causes of action for, among other claims, breach of contract and violation of the Donnelly Antitrust Act (N.Y. Gen Business Law § 340). The defendant laboratory asserted counterclaims for breach of contract and violation of the Lanham Act (15 U.S.C.A. § 1125(a)).B. Jury Instructions1. Instructions Proposed By |
| Plaintiff1. . | Plaintiff1. PJI 4:1. |
| Contracts—ElementsTo be modified to reflect breach of listing agreement.Plaintiffs Second Cause of Action seeks to recover for breach of a written contract entered into between the parties, which has been referred to during the trial as the Listing Agreement. Plaintiffs contend that Defendant breached the Listing by terminating the Listing Agreement without just cause by a letter dated July 1, 1998 without 60 days advance notice. Defendant's contend that the termination letter dated July 1, 1998, rightfully terminated the Listing Agreement because of Plaintiff's failure to perform certain field testing and their failure to correct the document referred to during the trial as the “Master Specifications” which Defendant contends was misleading.During the trial you heard testimony regarding two provisions of the Listing Agreement, paragraphs 24 and 25 under which the Defendant could have terminated the Agreement. I must instruct you that as a matter of law that Defendant in this action based its termination on paragraph 24 which permits termination only for cause. Therefore your job is to determine whether the Defendant had cause to terminate the Listing Agreement under the terms of Listing Agreement. You may not consider whether the Defendant might have terminated the Listing Agreement without cause, since as a matter of law the Defendant's July 1, 1998 letter terminated the Listing Agreement under paragraph 24.You therefore must determine whether the Defendant's stated reasons for terminating the Listing Agreement were valid, or as Plaintiffs contend, simply a pretext. The first issue you will need to decide is whether under the Listing Agreement and related documents, including the Factory Audit Manual and other documents, establish that it was the parties' intention under the term of these agreements for Plaintiffs to perform the field testing of Plaintiffs' ESE terminals. The parties intention is determined by the words used in the contract, the relationship of the parties, what they said and what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent indicated by its words may be considered. In determining the meaning of words in the Listing Agreement and the Factory Audit Manual you must give them their ordinary meaning. If you find any terms were ambiguous or unclear, you must interpret the Listing Agreement and Factory Audit Manual, as well as any other document drafted by the Defendant, in the light most favorable to the Plaintiffs.With respect to the Defendant's claim that Plaintiffs' Master Specifications were misleading, you must determine whether under paragraph 4 of the of the Listing Agreement the Defendant had a good faith belief or opinion that the Master Specifications either were in “conflict with the findings and listings and of ETL or that references to ETL Testing Laboratories Inc.. . .tended to create a misleading impression as to the nature of ETL's findings, listing, labeling and follow-up services.” In reaching a decision on whether the Defendant actually held this opinion, you may consider all of the facts and circumstances,If you determine that the Defendant's stated reason for terminating the Listing Agreement were simply a pretext, you must find for the Plaintiffs and award damages, as I will instruct | Contracts—ElementsTo be modified to reflect breach of listing agreement.Plaintiffs Second Cause of Action seeks to recover for breach of a written contract entered into between the parties, which has been referred to during the trial as the Listing Agreement. Plaintiffs contend that Defendant breached the Listing by terminating the Listing Agreement without just cause by a letter dated July 1, 1998 without 60 days advance notice. Defendant's contend that the termination letter dated July 1, 1998, rightfully terminated the Listing Agreement because of Plaintiff's failure to perform certain field testing and their failure to correct the document referred to during the trial as the “Master Specifications” which Defendant contends was misleading.During the trial you heard testimony regarding two provisions of the Listing Agreement, paragraphs 24 and 25 under which the Defendant could have terminated the Agreement. I must instruct you that as a matter of law that Defendant in this action based its termination on paragraph 24 which permits termination only for cause. Therefore your job is to determine whether the Defendant had cause to terminate the Listing Agreement under the terms of Listing Agreement. You may not consider whether the Defendant might have terminated the Listing Agreement without cause, since as a matter of law the Defendant's July 1, 1998 letter terminated the Listing Agreement under paragraph 24.You therefore must determine whether the Defendant's stated reasons for terminating the Listing Agreement were valid, or as Plaintiffs contend, simply a pretext. The first issue you will need to decide is whether under the Listing Agreement and related documents, including the Factory Audit Manual and other documents, establish that it was the parties' intention under the term of these agreements for Plaintiffs to perform the field testing of Plaintiffs' ESE terminals. The parties intention is determined by the words used in the contract, the relationship of the parties, what they said and what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent indicated by its words may be considered. In determining the meaning of words in the Listing Agreement and the Factory Audit Manual you must give them their ordinary meaning. If you find any terms were ambiguous or unclear, you must interpret the Listing Agreement and Factory Audit Manual, as well as any other document drafted by the Defendant, in the light most favorable to the Plaintiffs.With respect to the Defendant's claim that Plaintiffs' Master Specifications were misleading, you must determine whether under paragraph 4 of the of the Listing Agreement the Defendant had a good faith belief or opinion that the Master Specifications either were in “conflict with the findings and listings and of ETL or that references to ETL Testing Laboratories Inc.. . .tended to create a misleading impression as to the nature of ETL's findings, listing, labeling and follow-up services.” In reaching a decision on whether the Defendant actually held this opinion, you may consider all of the facts and circumstances,If you determine that the Defendant's stated reason for terminating the Listing Agreement were simply a pretext, you must find for the Plaintiffs and award damages, as I will instruct |
| you.9. . | you.9. PJI 4:20. |
| Contracts—Damages—GenerallyTo be modified to reflect lost profits, and bar on awarding duplicative damages for multiple causes of actions.I will now instruct you on the law regarding the amount of damages Plaintiffs are entitled to recover. The fact that I am charging you on the law of damages must not be taken as an intimation that you should find for the Plaintiffs under any of its causes of action. Only if you determine, based on the evidence and the law as I have explained it to you, that Defendant breached its agreements with the Plaintiffs will you consider the issue of damages.The law with respect to damages is different for Plaintiffs' claims for breach of contract, (its First, Second and Third Causes of Action); its claims for Negligent Misrepresentation Breach of Fiduciary duty (its Fourth, and Seventh Causes of Action), it claim for Intentional Interference with Contracts (its Fifth Cause of Action) and Breach of New York's Business Law. Therefore I will instruct you on each of the types of damages. However, in assessing damages, you may not award Plaintiffs the same damages twice. That is if you find that Plaintiffs sustained the same damages based both Defendant's breach of contract and violation of New York's Business Law, you may, only award these damages once.With respect to Plaintiffs' claims for breach of the Listing Agreement and other contracts, Plaintiffs are entitled to compensatory damages which are the natural and probable consequence of the breach by the Defendant, including lost profits. This will include out of pocket expenses incurred by the Plaintiffs as well as any other damages which the parties reasonably contemplated would result from a breach.This is a rule of foreseeability. The Defendant is liable for those damages which were foreseeable at the time the parties entered into the contract or contracts and which Defendant should have foreseen would result from a breach. This does not mean that the parties had to contemplate either the exact way the contract would be breached, or the amount of damages, but only that the type of damage would reasonably foreseeably occur.If you determine that the parties reasonably contemplated that a breach of any of the agreements by the Defendant would result in lost profits by the Plaintiffs, you must then determine the amount of these lost profits. In doing so, I instruct you that the law requires that the lost profits must have been caused by the breach and must be capable of proof with reasonable certainty. This does not require absolute certainty or mathematical precision. It does require that damages are capable of being calculated based upon reliable factors without undue speculation.If you determine that Defendant breached a duty it owed Plaintiffs under either of these causes of action, you may award Plaintiffs a fair approximation of its loss it sustained as a result of Defendant's breach of its duty. This may include Plaintiffs' direct losses as well as any other losses which naturally flow from the breach of Defendant's duty, including without limitation instruct you. If you find that the Defendant's stated reasons for termination were valid and in good faith then you must find for the Defendant.Author's Comment: It is recommended to include citation to authority in charge requests not drawn directly from NY PJI. As to recovery of lost future profits in a contract action, see 2B | Contracts—Damages—GenerallyTo be modified to reflect lost profits, and bar on awarding duplicative damages for multiple causes of actions.I will now instruct you on the law regarding the amount of damages Plaintiffs are entitled to recover. The fact that I am charging you on the law of damages must not be taken as an intimation that you should find for the Plaintiffs under any of its causes of action. Only if you determine, based on the evidence and the law as I have explained it to you, that Defendant breached its agreements with the Plaintiffs will you consider the issue of damages.The law with respect to damages is different for Plaintiffs' claims for breach of contract, (its First, Second and Third Causes of Action); its claims for Negligent Misrepresentation Breach of Fiduciary duty (its Fourth, and Seventh Causes of Action), it claim for Intentional Interference with Contracts (its Fifth Cause of Action) and Breach of New York's Business Law. Therefore I will instruct you on each of the types of damages. However, in assessing damages, you may not award Plaintiffs the same damages twice. That is if you find that Plaintiffs sustained the same damages based both Defendant's breach of contract and violation of New York's Business Law, you may, only award these damages once.With respect to Plaintiffs' claims for breach of the Listing Agreement and other contracts, Plaintiffs are entitled to compensatory damages which are the natural and probable consequence of the breach by the Defendant, including lost profits. This will include out of pocket expenses incurred by the Plaintiffs as well as any other damages which the parties reasonably contemplated would result from a breach.This is a rule of foreseeability. The Defendant is liable for those damages which were foreseeable at the time the parties entered into the contract or contracts and which Defendant should have foreseen would result from a breach. This does not mean that the parties had to contemplate either the exact way the contract would be breached, or the amount of damages, but only that the type of damage would reasonably foreseeably occur.If you determine that the parties reasonably contemplated that a breach of any of the agreements by the Defendant would result in lost profits by the Plaintiffs, you must then determine the amount of these lost profits. In doing so, I instruct you that the law requires that the lost profits must have been caused by the breach and must be capable of proof with reasonable certainty. This does not require absolute certainty or mathematical precision. It does require that damages are capable of being calculated based upon reliable factors without undue speculation.If you determine that Defendant breached a duty it owed Plaintiffs under either of these causes of action, you may award Plaintiffs a fair approximation of its loss it sustained as a result of Defendant's breach of its duty. This may include Plaintiffs' direct losses as well as any other losses which naturally flow from the breach of Defendant's duty, including without limitation instruct you. If you find that the Defendant's stated reasons for termination were valid and in good faith then you must find for the Defendant.Author's Comment: It is recommended to include citation to authority in charge requests not drawn directly from NY PJI. As to recovery of lost future profits in a contract action, see 2B |
| , | NY PJI2d 4:20, |
| at 206 to 208 (2018). “Lost future profits may be recovered provided that: (1) it is certain that the loss was caused by the breach; (2) the amount of loss is established with reasonable certainty, i.e., is not left to speculation; and (3) the particular damages were fairly within the contemplation of the parties at the time of the contract.” 2B | at 206 to 208 (2018). “Lost future profits may be recovered provided that: (1) it is certain that the loss was caused by the breach; (2) the amount of loss is established with reasonable certainty, i.e., is not left to speculation; and (3) the particular damages were fairly within the contemplation of the parties at the time of the contract.” 2B |
| , | NY PJI2d 4:20, |
| at 206 (2018) (citations omitted). Whether and to what extent lost profits were recoverable as damages played an important role in post-trial litigation in this case, in which the trial court's order of remittitur was upheld on appeal. See Part A above.2. Instructions Proposed By Defendant[Omitted: Instructions for defendant's claims of trademark infringement and Lanham Act | at 206 (2018) (citations omitted). Whether and to what extent lost profits were recoverable as damages played an important role in post-trial litigation in this case, in which the trial court's order of remittitur was upheld on appeal. See Part A above.2. Instructions Proposed By Defendant[Omitted: Instructions for defendant's claims of trademark infringement and Lanham Act |
| violation.]1. . | violation.]1. PJI 4:1.1. |
| [Supplemental Charge] Contracts—ElementsModified to reflect issue of whether contract was intended to benefit plaintiff as third-party beneficiary.Author's Comment: For a discussion of issues relating to third-party beneficiaries, see 2B | [Supplemental Charge] Contracts—ElementsModified to reflect issue of whether contract was intended to benefit plaintiff as third-party beneficiary.Author's Comment: For a discussion of issues relating to third-party beneficiaries, see 2B |
| , | NY PJI2d 4:1, |
| at 24 to 29 (2018).Plaintiffs seek to recover damages for breach of contract. Plaintiffs entered into a contract under which Defendant agreed to examine, inspect and test Plaintiffs' ESE lightning protection equipment. Defendant also evaluated and listed Plaintiffs' traditional Faraday lightning protection rods and component parts. Plaintiffs claim that Defendant failed to perform the services required by the agreement. Defendant, however, claims that Plaintiffs breached the Listing Agreement prior to Plaintiffs' withdrawal of Plaintiffs' listing privileges on July 1, 1998. Defendant, therefore, claims that it was entitled de-list Plaintiffs' ESE air terminals and terminate contract because of Plaintiffs' prior breach of the contract.For plaintiffs to prove a breach of contract, they must show (1) formation of a contract between the Plaintiffs and Defendant, (2) full performance by Plaintiffs, (3) Defendant's failure to fully perform, and (4) resulting damage. The burden is on Plaintiffs to prove that Defendant breached the Listing Agreement by de-listing Plaintiffs' ESE products on July 1, 1998.The parties do not dispute that a contract was formed. This contract has been referred to as the Listing Agreement. However, there is a dispute regarding whether Defendant entered into any contract(s) with Plaintiff Lightning Preventor of America, Inc. (“LPA”). The Defendant claims that it did not enter into any contract(s) with Lightning Preventor of America, Inc. If you find that LPA was not a party to the Listing Agreement, and unless you find that LPA was a third party beneficiary to the Listing Agreement, you cannot find that Intertek breached any obligations or any contract with LPA.To find that LPA was a third-party beneficiary to the Listing Agreement, you must find that Plaintiffs have shown, by a preponderance of the evidence, that 1) there is an existing valid and binding contract between the signatories to a contract, 2) the contract was intended for the benefit of the third party LPA, and 3) the benefit of the third party is sufficiently immediate, rather than incidental to indicate the assumption by the contracting parties of a duty to compensate that party if the benefit is lost. (Burns Jackson Miller Summit & Spitzer v. Lindman, 59 N.Y.2d 314 | at 24 to 29 (2018).Plaintiffs seek to recover damages for breach of contract. Plaintiffs entered into a contract under which Defendant agreed to examine, inspect and test Plaintiffs' ESE lightning protection equipment. Defendant also evaluated and listed Plaintiffs' traditional Faraday lightning protection rods and component parts. Plaintiffs claim that Defendant failed to perform the services required by the agreement. Defendant, however, claims that Plaintiffs breached the Listing Agreement prior to Plaintiffs' withdrawal of Plaintiffs' listing privileges on July 1, 1998. Defendant, therefore, claims that it was entitled de-list Plaintiffs' ESE air terminals and terminate contract because of Plaintiffs' prior breach of the contract.For plaintiffs to prove a breach of contract, they must show (1) formation of a contract between the Plaintiffs and Defendant, (2) full performance by Plaintiffs, (3) Defendant's failure to fully perform, and (4) resulting damage. The burden is on Plaintiffs to prove that Defendant breached the Listing Agreement by de-listing Plaintiffs' ESE products on July 1, 1998.The parties do not dispute that a contract was formed. This contract has been referred to as the Listing Agreement. However, there is a dispute regarding whether Defendant entered into any contract(s) with Plaintiff Lightning Preventor of America, Inc. (“LPA”). The Defendant claims that it did not enter into any contract(s) with Lightning Preventor of America, Inc. If you find that LPA was not a party to the Listing Agreement, and unless you find that LPA was a third party beneficiary to the Listing Agreement, you cannot find that Intertek breached any obligations or any contract with LPA.To find that LPA was a third-party beneficiary to the Listing Agreement, you must find that Plaintiffs have shown, by a preponderance of the evidence, that 1) there is an existing valid and binding contract between the signatories to a contract, 2) the contract was intended for the benefit of the third party LPA, and 3) the benefit of the third party is sufficiently immediate, rather than incidental to indicate the assumption by the contracting parties of a duty to compensate that party if the benefit is lost. (Burns Jackson Miller Summit & Spitzer v. Lindman, 59 N.Y.2d 314 |
| ( | (PJI 4:1.1 |
| Third Party Beneficiaries, p. 453)Author's Comment: The reference for the current edition would be 2B | Third Party Beneficiaries, p. 453)Author's Comment: The reference for the current edition would be 2B |
| , | NY PJI2d 4:1, |
| at 24 (2018).The parties disagree as to whether each opposing party performed their individual obligations under the contract. The Plaintiffs claim they performed under the contract and that Defendant failed to perform its obligations. The Defendant, however, maintains that Plaintiffs failed to perform their obligations under the contract and the Defendant therefore was not obligated to continue its performance. A party is not obligated to continue to perform its promises under a contract if the other party is not performing its obligations. In other words, if one party fails to perform its contractual promises, the other party is entitled to discontinue its performance.An actual breach of the contract when performance is due will excuse the duty of counter-performance. Note, however, that counter-performance will be excused only where breach is material. The Defendant claims that Plaintiffs failed to perform material terms of the contract, including 1) failing to revise the misleading Master Specification notwithstanding repeated requests for Plaintiffs to do so and 2) failing to arrange to have the field confirmation test program developed and implemented pursuant to the NFPA draft standard and defendant's Factory Audit Manual, which is part of the contract.If you find that Plaintiffs performed their obligations under the contract, and Defendant failed to perform its obligations there under, and Plaintiffs suffered damages which were proximately caused by Intertek's breach, then you must find for Plaintiffs. If, however, you find that Plaintiffs either did not perform their obligations under the contract, or that Defendant performed its obligations under the contract, or that Plaintiffs suffered no damages proximately caused by Defendant's breach, then you must find for Defendant.Given:———Refused:———Modified:———Withdrawn:————————Hon. Joseph G. | at 24 (2018).The parties disagree as to whether each opposing party performed their individual obligations under the contract. The Plaintiffs claim they performed under the contract and that Defendant failed to perform its obligations. The Defendant, however, maintains that Plaintiffs failed to perform their obligations under the contract and the Defendant therefore was not obligated to continue its performance. A party is not obligated to continue to perform its promises under a contract if the other party is not performing its obligations. In other words, if one party fails to perform its contractual promises, the other party is entitled to discontinue its performance.An actual breach of the contract when performance is due will excuse the duty of counter-performance. Note, however, that counter-performance will be excused only where breach is material. The Defendant claims that Plaintiffs failed to perform material terms of the contract, including 1) failing to revise the misleading Master Specification notwithstanding repeated requests for Plaintiffs to do so and 2) failing to arrange to have the field confirmation test program developed and implemented pursuant to the NFPA draft standard and defendant's Factory Audit Manual, which is part of the contract.If you find that Plaintiffs performed their obligations under the contract, and Defendant failed to perform its obligations there under, and Plaintiffs suffered damages which were proximately caused by Intertek's breach, then you must find for Plaintiffs. If, however, you find that Plaintiffs either did not perform their obligations under the contract, or that Defendant performed its obligations under the contract, or that Plaintiffs suffered no damages proximately caused by Defendant's breach, then you must find for Defendant.Given:———Refused:———Modified:———Withdrawn:————————Hon. Joseph G. |
| Makowski2. . | Makowski2. PJI 4:20. |
| Contracts—Damages—GenerallyModified to emphasize issue of proximate cause.In the event that you find that there was a breach of the contract between Plaintiffs and the Defendant, denominated as the Listing Labeling, and Follow-Up Agreement, dated May 27, 1994, (Ex. 7) I hereby instruct you as follows:The Plaintiff has the burden of proof with a reasonable degree of certainty to establish that the breach of said contract by the Defendant was the proximate cause of its damages. The amount of damages which you find to be proximately caused by the said breach of contract shall be based upon proof by the Plaintiffs that the damages are directly related to the breach of contract and not brought about either in full or in part by the other intervening causes. The damages that you find must be capable of your determination with reasonable certainty and that the damages were fairly within the contemplation of the parties to the contract at the time that it was made on May 27, 1994.In that regard, I hereby charge you that the only reference to the length of time contemplated by the contract between the Plaintiffs and the Defendant is found in paragraphs 23 and 25.I further charge you, that in calculating any periods of time from July 1, 1998 forward, you must take into consideration that the ESE product subject to the contract provision was a relatively new product and in seeking to recover for lost future profits, a stricter standard is imposed because it was a new product.In that regard, I charge you that Dr. Southwick's 15 year period for lost damages was not in the contemplation of the Plaintiffs and Defendant at the time of the execution of the contract and therefore, you may not use that time period for the calculation of lost profits to the Plaintiffs.I charge you in absence of any provision for a remedy to be awarded for a breach the contract the rule to be applied by you is that you must find the damages with reasonable certainty and that they are directly traceable, to the breach of the contract.I further charge you that if you find that the Plaintiffs suffered a loss of profits pursuant to the charge that I have just given you, you must determine first the amount of profits which have been proven to you by direct evidence during the course of this trial. And if you find that there is no such direct evidence, then you shall find that there are no lost profits attributable to the breach of contract.In determining whether the loss of profits are directly caused by the breach of the contract between the Plaintiffs and Defendants, you must consider whether there are any outside relevant circumstances, such as competitors, change in economic conditions, the basis upon which the evidence of loss of profits were determined by the Plaintiffs, and the circumstances of the Plaintiffs when determining whether any of the loss of profits are directly related to said breach.I further instruct you that any award of damages of loss of profits you find must be based upon the direct breach of the contract and in an amount which will fairly compensate the plaintiffs for their loss of said profits. That is not to say that I am taking any position as to whether you should find that there was a breach of contract and that breach of contract was the direct and sole cause of the plaintiffs' loss of | Contracts—Damages—GenerallyModified to emphasize issue of proximate cause.In the event that you find that there was a breach of the contract between Plaintiffs and the Defendant, denominated as the Listing Labeling, and Follow-Up Agreement, dated May 27, 1994, (Ex. 7) I hereby instruct you as follows:The Plaintiff has the burden of proof with a reasonable degree of certainty to establish that the breach of said contract by the Defendant was the proximate cause of its damages. The amount of damages which you find to be proximately caused by the said breach of contract shall be based upon proof by the Plaintiffs that the damages are directly related to the breach of contract and not brought about either in full or in part by the other intervening causes. The damages that you find must be capable of your determination with reasonable certainty and that the damages were fairly within the contemplation of the parties to the contract at the time that it was made on May 27, 1994.In that regard, I hereby charge you that the only reference to the length of time contemplated by the contract between the Plaintiffs and the Defendant is found in paragraphs 23 and 25.I further charge you, that in calculating any periods of time from July 1, 1998 forward, you must take into consideration that the ESE product subject to the contract provision was a relatively new product and in seeking to recover for lost future profits, a stricter standard is imposed because it was a new product.In that regard, I charge you that Dr. Southwick's 15 year period for lost damages was not in the contemplation of the Plaintiffs and Defendant at the time of the execution of the contract and therefore, you may not use that time period for the calculation of lost profits to the Plaintiffs.I charge you in absence of any provision for a remedy to be awarded for a breach the contract the rule to be applied by you is that you must find the damages with reasonable certainty and that they are directly traceable, to the breach of the contract.I further charge you that if you find that the Plaintiffs suffered a loss of profits pursuant to the charge that I have just given you, you must determine first the amount of profits which have been proven to you by direct evidence during the course of this trial. And if you find that there is no such direct evidence, then you shall find that there are no lost profits attributable to the breach of contract.In determining whether the loss of profits are directly caused by the breach of the contract between the Plaintiffs and Defendants, you must consider whether there are any outside relevant circumstances, such as competitors, change in economic conditions, the basis upon which the evidence of loss of profits were determined by the Plaintiffs, and the circumstances of the Plaintiffs when determining whether any of the loss of profits are directly related to said breach.I further instruct you that any award of damages of loss of profits you find must be based upon the direct breach of the contract and in an amount which will fairly compensate the plaintiffs for their loss of said profits. That is not to say that I am taking any position as to whether you should find that there was a breach of contract and that breach of contract was the direct and sole cause of the plaintiffs' loss of |
| profits.3. . | profits.3. PJI 4:20. |
| Contracts—Damages—GenerallyModified to reflect lost future profits.In the absence of any allegations of fact showing damage, the mere fact that defendant breached the contract is insufficient to sustain a complaint. Lost future profits may be recovered provided that: (1) it is certain that the loss is caused by the breach; (2) the amount of lost is established with reasonable certainty, i.e. is not left to speculation; (3) a particular damages were fairly in the contemplation of the parties at the time of the contract. Where plaintiff is a new business seeking to recover for loss of future profits, plaintiff is held to a higher degree of proof when establishing the amount of loss.C. Case Documents Available on Westlaw1.Order, Heary Bros. Lightning Protection Co., Inc. v. Intertek Testing Services, N.A., Inc., 9 A.D.3d 870, 780 N.Y.S.2d 691 (N.Y.A.D. 4 Dept. 2004)Order, Heary Bros. Lightning Protection Co., Inc. v. Intertek Testing, 4 N.Y.3d 615, 830 N.E.2d 298 (N.Y. 2005)Order, | Contracts—Damages—GenerallyModified to reflect lost future profits.In the absence of any allegations of fact showing damage, the mere fact that defendant breached the contract is insufficient to sustain a complaint. Lost future profits may be recovered provided that: (1) it is certain that the loss is caused by the breach; (2) the amount of lost is established with reasonable certainty, i.e. is not left to speculation; (3) a particular damages were fairly in the contemplation of the parties at the time of the contract. Where plaintiff is a new business seeking to recover for loss of future profits, plaintiff is held to a higher degree of proof when establishing the amount of loss.C. Case Documents Available on Westlaw1.Order, Heary Bros. Lightning Protection Co., Inc. v. Intertek Testing Services, N.A., Inc., 9 A.D.3d 870, 780 N.Y.S.2d 691 (N.Y.A.D. 4 Dept. 2004)Order, Heary Bros. Lightning Protection Co., Inc. v. Intertek Testing, 4 N.Y.3d 615, 830 N.E.2d 298 (N.Y. 2005)Order, |
| tek | Heary Bros. Lightning Protection Co., Inc. v. Intertek |
| Testing Services, N.A., Inc., 9 A.D.3d 874, 779 N.Y.S.2d 392 (N.Y.A.D. 4 Dept. 2004)Order, Heary Bros. Lightning Protection Co., Inc. v. Lightning Protection, 287 F.Supp.2d 1038 (D. Ariz. 2003) (related litigation)D.Ariz.,2003.Trial Motion, Memorandum and Affidavit, 2005 WL 5353712Trial Motion, Memorandum and Affidavit, 2003 WL 24288600Verdict, Agreement and Settlement, 2002 WL 32994436Expert Trial Transcript, 2002 WL 32995636Plaintiff's Proposed Jury Instructions, 2001 WL 34837915Defendant's Amended Proposed Jury Instructions, 2001 WL 34837916Defendant's Proposed Jury Instructions, 2001 WL 34837917Answer and Affirmative Defenses of Defendants, 1998 WL 34373563Docket, 0601365/1997Expert Trial Transcript, 1997 WL 33833344Expert Trial Transcript, | Testing Services, N.A., Inc., 9 A.D.3d 874, 779 N.Y.S.2d 392 (N.Y.A.D. 4 Dept. 2004)Order, Heary Bros. Lightning Protection Co., Inc. v. Lightning Protection, 287 F.Supp.2d 1038 (D. Ariz. 2003) (related litigation)D.Ariz.,2003.Trial Motion, Memorandum and Affidavit, 2005 WL 5353712Trial Motion, Memorandum and Affidavit, 2003 WL 24288600Verdict, Agreement and Settlement, 2002 WL 32994436Expert Trial Transcript, 2002 WL 32995636Plaintiff's Proposed Jury Instructions, 2001 WL 34837915Defendant's Amended Proposed Jury Instructions, 2001 WL 34837916Defendant's Proposed Jury Instructions, 2001 WL 34837917Answer and Affirmative Defenses of Defendants, 1998 WL 34373563Docket, 0601365/1997Expert Trial Transcript, 1997 WL 33833344Expert Trial Transcript, |
| 2.Sample | 1997 WL 338333452.Sample |
| Westlaw Query For Trial Court Documents in Similar Cases: breach! /p “service agreement” equipmentD. Research References1.Key | Westlaw Query For Trial Court Documents in Similar Cases: breach! /p “service agreement” equipmentD. Research References1.Key |
| Numbers | NumbersContracts 185 |
| to | to |
| 188Damages 15 |
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| 46.10Trial 182 |
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| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal Courts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules §§ 7:209, |
| , | 7:209A, 7:351 |
| to | to |
| § 13:5 Breach | 7:355§ 13:5 Breach |
| of contract: insurance coverageA. BackgroundType of Case: Breach of contract; insurance coverageType of Damages: Property and liability losses incurred by construction company due to construction accidentsCase Name: C.O. Falter Construction Corporation v Cincinnati Insurance CompanyCourt: U.S. District Court, Northern District of New YorkJudge: Glenn T. SuddabyDocket Number: 5:09-cv-00565-GTS-ATBOutcome: Settled before trial for undisclosed amountBrief Summary of Factual Allegations: The plaintiff construction company had a contract with the County of Onondaga to perform various construction, upgrade, replacement and related activities at the Wetzel Road Wastewater Treatment Plant and Sawmill Creek Pump Station. While the plaintiff was installing a sheeting pit at the Sawmill Creek station, the station began sinking and the pit changed its contours, damaging the plaintiff's equipment and posing a sanitation threat that required further work on an emergency basis to protect and stabilize the site and the station. The plaintiff alleged property damage of over $1 million and a liability loss in excess of $700,000, as to which the defendant insurer denied coverage. At the Wetzel Road facility, it was alleged that the plaintiff inadvertently drove piles into an aquifer of which it had no prior knowledge, flooding the site and causing damage to the plaintiff's property in excess of $2 million, for which the insurer denied coverage, which was claimed under the “Installation Floater.” It was alleged that the claims were improperly processed by the insurer's representative. The plaintiff alleged it had not been paid the amounts due under the policy, and further alleged violations of the insurer's duty of good faith and fair dealing. The insurer alleged in part that the loss was not covered due to the plaintiff's having been at fault.B. Proposed Jury Instructions1. Instructions Proposed by Plaintiff1.Overview of the CaseThis case involves a dispute between C.O. Falter Construction Company, Inc., a heavy construction company which I and the parties may refer to during this trial as “Falter,” and its insurance company, The Cincinnati Insurance Company, which I and the parties may refer to during this trial as “Cincinnati.” Falter seeks insurance coverage for two separate incidents that occurred during construction of the foundations for two separate buildings. This coverage is sought under what is called the “installation floater” coverage part of an insurance policy that Cincinnati sold to Falter. Cincinnati contends that no coverage is owed to Falter for these incidents under the terms of the insurance policy.The parties have stipulated to the following facts:1. Falter entered into a contract with the County of Onondaga Department of Water Environmental Protection (the “County”), to perform various construction activities as part of a wastewater treatment project called the Wetzel Road Wastewater Treatment Plant Upgrade and Sawmill Creek Pump Station Replacement Project.2. The project consisted of various scopes of work at different locations in Onondaga County.3. The contracted work included the construction of a new Sawmill Creek Pump Station at 2207 Cold Springs Road in Liverpool, New York (“Sawmill”) to replace the then-existing Sawmill Pump Station.4. The contracted work also included the construction of a new “Headworks” building at 4020 Wetzel Road, Liverpool, New York (“Wetzel”).5. Falter contracted to act as general contractor for all of the work under the project except for electrical, HVAC and plumbing.6. The parties have stipulated to the following facts regarding the incident at the Sawmill site:a. In order to construct the new Sawmill Creek Pump Station, an underground foundation was needed, which required Falter to excavate the area of the new Pump Station down to a depth of approximately 35 feet.b. Before excavation began, Falter planned to stabilize the perimeter of the underground area that would be excavated by creating what is known as a “sheeting pit.”c. The “sheeting pit” was to be created, in part, by driving individual “sheet piles” into the earth with a vibratory hammer.d. A vibratory hammer is a large piece of machinery that hoists the sheet piles up and drives them into the ground by exerting downward pressure on them and vibrating them.e. Each sheet pile was approximately 60 feet long by 20 inches wide and about one-half inch thick.f. The sheet piles are designed to interlock with one another when driven into the ground.g. Falter intended to remove the sheet piles from the ground once the foundation was completed in order to reuse them on future foundation projects.h. By Saturday, May 14, 2005, Falter had driven all of the sheet piles for three of the four sides of the Sawmill sheeting pit, some of which had not been driven to grade.i. By Monday, May 16, 2005, the soil at the Sawmill site had settled.j. The vibrations exerted through Falter's driving of the sheet piles caused the soils to liquefy and lose strength, which in turn caused the area of the sheeting pit to settle.7. The parties have stipulated to the following facts regarding the incident at the Wetzel site:a. Like the new Sawmill Pump Station, the Headworks building to be constructed at the Wetzel site also required an underground foundation, and Falter created a sheeting pit in order to stabilize the perimeter of the underground area that would be excavated.b. Falter completed the driving of sheet piles at Wetzel without incident.c. With the sheet piles in place, Falter excavated the area of the foundation and installed multiple layers of steel support bracing (known as struts, whalers and lookouts) to brace the sheet piles that formed the walls of the excavated area.d. Like the sheet piles, Falter intended to remove all of the steel support bracing from the site once the foundation was completed in order to reuse them on future foundation projects.e. From the base of the excavated sheeting pit, Falter then began to drive steel beams called “H-piles” into the ground.f. The H-piles were 100 feet in length and 10 inches wide.g. Falter planned to drive a number of H-piles vertically into the base of the sheeting pit, and then pour a concrete slab that would be anchored to the H-piles and would form the base of the foundation of the new Headworks building.h. Falter drove test H-Piles into the ground between October 18, 2005, and October 20, 2005.i. Groundwater, silt and soil traveled up the sides of the H-piles and entered the sheeting pit, causing the soils in the area of the sheeting pit to settle and shift.j. Falter flooded the pit in order to stabilize it.8. The parties have stipulated to the following facts regarding the insurance at issue in this case:a. At the time of the Sawmill and Wetzel incidents, Falter was insured under a commercial package insurance policy issued by Cincinnati. The policy bears policy number CPP 090 19 27 and has a policy period of May 1, 2005, through May 1, 2006.b. The policy includes an “Installation Floater Coverage Part.”c. Falter sought coverage under the Installation Floater Coverage Part of the Policy for alleged damages which it claims were incurred after the incidents at Sawmill and Wetzel.d. Cincinnati denied coverage for Falter's Installation Floater insurance claims by letter dated December 3, 2008.9. Prior to trial, I made certain legal determinations that have narrowed the scope of the factual issues that you will be called upon to decide at the conclusion of this trial. At the end of the trial, I will instruct you in the specific questions you are to answer, and what you should and should not consider in your deliberations. Generally, the factual disputes between the parties are focused upon the following issues:1. Whether certain of the damages claimed by Falter in this case constitute “loss” to “covered property” under the policy.2. Whether there was a substantial impairment to the structural integrity of all or part of the Sawmill and Wetzel sheeting pits as a result of the above-described incidents at those sites.3. Whether the losses claimed in this case were caused by (a) misinformation concerning the soil composition and groundwater conditions in the areas of the Sawmill and Wetzel sheeting pits, or(b) Falter's driving of the sheet piles at Sawmill with the vibratory hammer and Falter's driving of H-piles at Wetzel that struck the unknown, underground water source.4. If the losses claimed in this case were caused by soil and groundwater misinformation, whether Falter or the County was responsible for that misinformation.5. Whether Falter's claimed extended general conditions arise from construction delays or increased work effort.6. What is the earliest ascertainable date that Falter's breach of contract claims against Cincinnati existed?2.Collapse Exception to Earth Movement ExclusionThe parties dispute whether there was a substantial impairment to the structural integrity of all or part of the Sawmill and Wetzel sheeting pits as a result of the incidents at those sites. The structural integrity of a structure is substantially impaired where the structure is no longer structurally sound or suitable for its intended purpose in its present condition.If you find that the structural integrity of all or part of the Wetzel sheeting pit was substantially impaired as a result of the incident at Wetzel, then you must find that there was a substantial impairment to the structural integrity of the Wetzel sheeting pit.Likewise, if you find that the structural integrity of all or part of the Sawmill sheeting pit was substantially impaired as a result of the incident at Sawmill, then you must find that there was a substantial impairment to the structural integrity of the Sawmill sheeting pit.Authorities: This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 20 (Docket No. 46); Royal Indemnity Co. v. Grunberg, 155 A.D.2d 187, 189 (3d Dep't 1990); Beach v. Middlesex Mut. Assur. Co., 205 Conn. 246, 252, 532 A.2d 1297, 1300 (1987) (“[T]he more persuasive authorities hold that the term “collapse” is sufficiently ambiguous to include coverage for any substantial impairment of the structural integrity of a building.”) (citing Auto Owners Ins. Co. v. Allen, 362 So.2d 176, 177–78 (Fla. App.1978); Nationwide Mutual Fire Ins. Co. v. Tomlin, 181 Ga.App. 413, 416, 352 S.E.2d 612 (1986); Rogers v. Maryland Casualty Co., 252 Iowa 1096, 1102, 109 N.W.2d 435 (1961); Government Employees Ins. Co. v. DeJames, 256 Md. 717, 724, 261 A.2d 747 (1970); Vorme/ker v. 0/eksinski, 40 Mich.App. 618, 632, 199 N.W.2d 287 (1972); Morton v. Travelers Indemnity Co., 171 Neb. 433, 449, 106 N.W.2d 710 (1960); Morton v. Great American Ins. Co., 77 N.M. 35, 38–39,419 P.2d 239 (1966); Employers Mutual Casualty Co. v. Nelson, 361 S.W.2d 704, 709 (Tex.1962); Thomewe/1 v. Indiana Lumbermens Mutua/Ins. Co., 33 Wis.2d 344, 349, 147 N.W.2d 317 (1967)).3.Proximate Cause/Burden of Proof—Exclusionary ClauseThe parties dispute what caused the incidents at Sawmill and Wetzel. Falter contends that the incident at Sawmill was caused by its driving of the sheet piles that caused the soils to react in an unforeseeable way, and that the incident at Wetzel was caused by Falter's driving of the H-pile that punctured an unknown, underground water source, which are covered events under the policy. Cincinnati contends that the cause of the incidents at both Sawmill and Wetzel was misinformation regarding the existing soil composition and groundwater conditions at those sites.The misinformation at issue in connection with the Wetzel site was the failure of the available soils information to reveal the presence of the underground water source that Falter struck with the H-piles, which caused water, along with silt and sediment, to travel up the sides of the H-piles, reducing the strength of the soil below the base of the sheeting pit.The misinformation at issue in connection with the Sawmill site was the failure of the available soils information to reveal the presence of narrowly graded, single-sized fine sands and non-plastic silts that extended to depths of up to 30 feet below the area of the Sawmill sheeting pit, which soils are much more likely to react in the manner they did to Falter's vibratory hammering of the sheet piles as compared to the types of soils revealed in the information available to Falter at the time of the incident at Sawmill.In determining what caused the incidents at Sawmill and Wetzel, you must ask yourself what a reasonable business person would look to as the most direct and obvious cause of the incidents. Even when a separate, earlier event undoubtedly set the stage for later or resulting events to take place, the direct cause of the loss is that event most clearly linked to the loss itself. The causation inquiry stops at the efficient physical cause of the loss; it does not trace events back to their metaphysical beginnings.It is Cincinnati's burden to prove that it is more likely than not that the cause of the incidents at both Sawmill and Wetzel was misinformation regarding the existing soil and groundwater conditions at those sites described above.Additionally, even if you find that it was misinformation regarding the existing soil and groundwater conditions that caused the incidents at Sawmill and Wetzel, you still must find for Falter on its breach of contract claims against Cincinnati unless Cincinnati also can demonstrate that it is more likely than not that Falter, as opposed to Onondaga County, was responsible for such soil and groundwater misinformation.Falter contends that the County was responsible for the soil and groundwater misinformation because the County supplied it with that information at the beginning of the construction project and withheld from Falter additional soil information in the County's possession that would have revealed the far more adverse soil and groundwater conditions actually present at the site.Authorities: Album Realty Corp. v. American Home Assurance Co., 80 N.Y.2d 1008, 1010–11, 607 N.E.2d 804, 805, 592 N.Y.S.2d 657, 658 (1992) (holding that an exclusion for damage caused by freezing did not apply to preclude coverage for damage caused by flooding after a sprinkler head froze and burst); Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 48 (2d Cir. 2006) (holding that contact of dust with insured property, and not the event that caused the dust, was the direct cause of damage); Junius Dev., Inc. v. New York Marine & Genera/Ins. Co., 48 A.D.3d 426, 427, 852 N.Y.S.2d 185, 187 (2d Dep't 2008) | of contract: insurance coverageA. BackgroundType of Case: Breach of contract; insurance coverageType of Damages: Property and liability losses incurred by construction company due to construction accidentsCase Name: C.O. Falter Construction Corporation v Cincinnati Insurance CompanyCourt: U.S. District Court, Northern District of New YorkJudge: Glenn T. SuddabyDocket Number: 5:09-cv-00565-GTS-ATBOutcome: Settled before trial for undisclosed amountBrief Summary of Factual Allegations: The plaintiff construction company had a contract with the County of Onondaga to perform various construction, upgrade, replacement and related activities at the Wetzel Road Wastewater Treatment Plant and Sawmill Creek Pump Station. While the plaintiff was installing a sheeting pit at the Sawmill Creek station, the station began sinking and the pit changed its contours, damaging the plaintiff's equipment and posing a sanitation threat that required further work on an emergency basis to protect and stabilize the site and the station. The plaintiff alleged property damage of over $1 million and a liability loss in excess of $700,000, as to which the defendant insurer denied coverage. At the Wetzel Road facility, it was alleged that the plaintiff inadvertently drove piles into an aquifer of which it had no prior knowledge, flooding the site and causing damage to the plaintiff's property in excess of $2 million, for which the insurer denied coverage, which was claimed under the “Installation Floater.” It was alleged that the claims were improperly processed by the insurer's representative. The plaintiff alleged it had not been paid the amounts due under the policy, and further alleged violations of the insurer's duty of good faith and fair dealing. The insurer alleged in part that the loss was not covered due to the plaintiff's having been at fault.B. Proposed Jury Instructions1. Instructions Proposed by Plaintiff1.Overview of the CaseThis case involves a dispute between C.O. Falter Construction Company, Inc., a heavy construction company which I and the parties may refer to during this trial as “Falter,” and its insurance company, The Cincinnati Insurance Company, which I and the parties may refer to during this trial as “Cincinnati.” Falter seeks insurance coverage for two separate incidents that occurred during construction of the foundations for two separate buildings. This coverage is sought under what is called the “installation floater” coverage part of an insurance policy that Cincinnati sold to Falter. Cincinnati contends that no coverage is owed to Falter for these incidents under the terms of the insurance policy.The parties have stipulated to the following facts:1. Falter entered into a contract with the County of Onondaga Department of Water Environmental Protection (the “County”), to perform various construction activities as part of a wastewater treatment project called the Wetzel Road Wastewater Treatment Plant Upgrade and Sawmill Creek Pump Station Replacement Project.2. The project consisted of various scopes of work at different locations in Onondaga County.3. The contracted work included the construction of a new Sawmill Creek Pump Station at 2207 Cold Springs Road in Liverpool, New York (“Sawmill”) to replace the then-existing Sawmill Pump Station.4. The contracted work also included the construction of a new “Headworks” building at 4020 Wetzel Road, Liverpool, New York (“Wetzel”).5. Falter contracted to act as general contractor for all of the work under the project except for electrical, HVAC and plumbing.6. The parties have stipulated to the following facts regarding the incident at the Sawmill site:a. In order to construct the new Sawmill Creek Pump Station, an underground foundation was needed, which required Falter to excavate the area of the new Pump Station down to a depth of approximately 35 feet.b. Before excavation began, Falter planned to stabilize the perimeter of the underground area that would be excavated by creating what is known as a “sheeting pit.”c. The “sheeting pit” was to be created, in part, by driving individual “sheet piles” into the earth with a vibratory hammer.d. A vibratory hammer is a large piece of machinery that hoists the sheet piles up and drives them into the ground by exerting downward pressure on them and vibrating them.e. Each sheet pile was approximately 60 feet long by 20 inches wide and about one-half inch thick.f. The sheet piles are designed to interlock with one another when driven into the ground.g. Falter intended to remove the sheet piles from the ground once the foundation was completed in order to reuse them on future foundation projects.h. By Saturday, May 14, 2005, Falter had driven all of the sheet piles for three of the four sides of the Sawmill sheeting pit, some of which had not been driven to grade.i. By Monday, May 16, 2005, the soil at the Sawmill site had settled.j. The vibrations exerted through Falter's driving of the sheet piles caused the soils to liquefy and lose strength, which in turn caused the area of the sheeting pit to settle.7. The parties have stipulated to the following facts regarding the incident at the Wetzel site:a. Like the new Sawmill Pump Station, the Headworks building to be constructed at the Wetzel site also required an underground foundation, and Falter created a sheeting pit in order to stabilize the perimeter of the underground area that would be excavated.b. Falter completed the driving of sheet piles at Wetzel without incident.c. With the sheet piles in place, Falter excavated the area of the foundation and installed multiple layers of steel support bracing (known as struts, whalers and lookouts) to brace the sheet piles that formed the walls of the excavated area.d. Like the sheet piles, Falter intended to remove all of the steel support bracing from the site once the foundation was completed in order to reuse them on future foundation projects.e. From the base of the excavated sheeting pit, Falter then began to drive steel beams called “H-piles” into the ground.f. The H-piles were 100 feet in length and 10 inches wide.g. Falter planned to drive a number of H-piles vertically into the base of the sheeting pit, and then pour a concrete slab that would be anchored to the H-piles and would form the base of the foundation of the new Headworks building.h. Falter drove test H-Piles into the ground between October 18, 2005, and October 20, 2005.i. Groundwater, silt and soil traveled up the sides of the H-piles and entered the sheeting pit, causing the soils in the area of the sheeting pit to settle and shift.j. Falter flooded the pit in order to stabilize it.8. The parties have stipulated to the following facts regarding the insurance at issue in this case:a. At the time of the Sawmill and Wetzel incidents, Falter was insured under a commercial package insurance policy issued by Cincinnati. The policy bears policy number CPP 090 19 27 and has a policy period of May 1, 2005, through May 1, 2006.b. The policy includes an “Installation Floater Coverage Part.”c. Falter sought coverage under the Installation Floater Coverage Part of the Policy for alleged damages which it claims were incurred after the incidents at Sawmill and Wetzel.d. Cincinnati denied coverage for Falter's Installation Floater insurance claims by letter dated December 3, 2008.9. Prior to trial, I made certain legal determinations that have narrowed the scope of the factual issues that you will be called upon to decide at the conclusion of this trial. At the end of the trial, I will instruct you in the specific questions you are to answer, and what you should and should not consider in your deliberations. Generally, the factual disputes between the parties are focused upon the following issues:1. Whether certain of the damages claimed by Falter in this case constitute “loss” to “covered property” under the policy.2. Whether there was a substantial impairment to the structural integrity of all or part of the Sawmill and Wetzel sheeting pits as a result of the above-described incidents at those sites.3. Whether the losses claimed in this case were caused by (a) misinformation concerning the soil composition and groundwater conditions in the areas of the Sawmill and Wetzel sheeting pits, or(b) Falter's driving of the sheet piles at Sawmill with the vibratory hammer and Falter's driving of H-piles at Wetzel that struck the unknown, underground water source.4. If the losses claimed in this case were caused by soil and groundwater misinformation, whether Falter or the County was responsible for that misinformation.5. Whether Falter's claimed extended general conditions arise from construction delays or increased work effort.6. What is the earliest ascertainable date that Falter's breach of contract claims against Cincinnati existed?2.Collapse Exception to Earth Movement ExclusionThe parties dispute whether there was a substantial impairment to the structural integrity of all or part of the Sawmill and Wetzel sheeting pits as a result of the incidents at those sites. The structural integrity of a structure is substantially impaired where the structure is no longer structurally sound or suitable for its intended purpose in its present condition.If you find that the structural integrity of all or part of the Wetzel sheeting pit was substantially impaired as a result of the incident at Wetzel, then you must find that there was a substantial impairment to the structural integrity of the Wetzel sheeting pit.Likewise, if you find that the structural integrity of all or part of the Sawmill sheeting pit was substantially impaired as a result of the incident at Sawmill, then you must find that there was a substantial impairment to the structural integrity of the Sawmill sheeting pit.Authorities: This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 20 (Docket No. 46); Royal Indemnity Co. v. Grunberg, 155 A.D.2d 187, 189 (3d Dep't 1990); Beach v. Middlesex Mut. Assur. Co., 205 Conn. 246, 252, 532 A.2d 1297, 1300 (1987) (“[T]he more persuasive authorities hold that the term “collapse” is sufficiently ambiguous to include coverage for any substantial impairment of the structural integrity of a building.”) (citing Auto Owners Ins. Co. v. Allen, 362 So.2d 176, 177–78 (Fla. App.1978); Nationwide Mutual Fire Ins. Co. v. Tomlin, 181 Ga.App. 413, 416, 352 S.E.2d 612 (1986); Rogers v. Maryland Casualty Co., 252 Iowa 1096, 1102, 109 N.W.2d 435 (1961); Government Employees Ins. Co. v. DeJames, 256 Md. 717, 724, 261 A.2d 747 (1970); Vorme/ker v. 0/eksinski, 40 Mich.App. 618, 632, 199 N.W.2d 287 (1972); Morton v. Travelers Indemnity Co., 171 Neb. 433, 449, 106 N.W.2d 710 (1960); Morton v. Great American Ins. Co., 77 N.M. 35, 38–39,419 P.2d 239 (1966); Employers Mutual Casualty Co. v. Nelson, 361 S.W.2d 704, 709 (Tex.1962); Thomewe/1 v. Indiana Lumbermens Mutua/Ins. Co., 33 Wis.2d 344, 349, 147 N.W.2d 317 (1967)).3.Proximate Cause/Burden of Proof—Exclusionary ClauseThe parties dispute what caused the incidents at Sawmill and Wetzel. Falter contends that the incident at Sawmill was caused by its driving of the sheet piles that caused the soils to react in an unforeseeable way, and that the incident at Wetzel was caused by Falter's driving of the H-pile that punctured an unknown, underground water source, which are covered events under the policy. Cincinnati contends that the cause of the incidents at both Sawmill and Wetzel was misinformation regarding the existing soil composition and groundwater conditions at those sites.The misinformation at issue in connection with the Wetzel site was the failure of the available soils information to reveal the presence of the underground water source that Falter struck with the H-piles, which caused water, along with silt and sediment, to travel up the sides of the H-piles, reducing the strength of the soil below the base of the sheeting pit.The misinformation at issue in connection with the Sawmill site was the failure of the available soils information to reveal the presence of narrowly graded, single-sized fine sands and non-plastic silts that extended to depths of up to 30 feet below the area of the Sawmill sheeting pit, which soils are much more likely to react in the manner they did to Falter's vibratory hammering of the sheet piles as compared to the types of soils revealed in the information available to Falter at the time of the incident at Sawmill.In determining what caused the incidents at Sawmill and Wetzel, you must ask yourself what a reasonable business person would look to as the most direct and obvious cause of the incidents. Even when a separate, earlier event undoubtedly set the stage for later or resulting events to take place, the direct cause of the loss is that event most clearly linked to the loss itself. The causation inquiry stops at the efficient physical cause of the loss; it does not trace events back to their metaphysical beginnings.It is Cincinnati's burden to prove that it is more likely than not that the cause of the incidents at both Sawmill and Wetzel was misinformation regarding the existing soil and groundwater conditions at those sites described above.Additionally, even if you find that it was misinformation regarding the existing soil and groundwater conditions that caused the incidents at Sawmill and Wetzel, you still must find for Falter on its breach of contract claims against Cincinnati unless Cincinnati also can demonstrate that it is more likely than not that Falter, as opposed to Onondaga County, was responsible for such soil and groundwater misinformation.Falter contends that the County was responsible for the soil and groundwater misinformation because the County supplied it with that information at the beginning of the construction project and withheld from Falter additional soil information in the County's possession that would have revealed the far more adverse soil and groundwater conditions actually present at the site.Authorities: Album Realty Corp. v. American Home Assurance Co., 80 N.Y.2d 1008, 1010–11, 607 N.E.2d 804, 805, 592 N.Y.S.2d 657, 658 (1992) (holding that an exclusion for damage caused by freezing did not apply to preclude coverage for damage caused by flooding after a sprinkler head froze and burst); Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 48 (2d Cir. 2006) (holding that contact of dust with insured property, and not the event that caused the dust, was the direct cause of damage); Junius Dev., Inc. v. New York Marine & Genera/Ins. Co., 48 A.D.3d 426, 427, 852 N.Y.S.2d 185, 187 (2d Dep't 2008) |
| ( | (reversing |
| trial court's dismissal of complaint pursuant to insurance company's motion for summary judgment as ordinary business person would consider loss immediately and visibly occasioned by separation of the pipe, rendering inapplicable policy exclusion for water that overflows from a drain); Neuwirth v. Blue Cross & Blue Shield of Greater N.Y., 62 N.Y.2d 718, 465 N.E.2d 353, 476 N.Y.S.2d 814 (1984) (“The burden of proving that a claim falls within the exclusions of an insurance policy rests with the insurer. Accordingly, the trial court properly ordered a new trial after it recognized that it had erroneously charged the jury that the insured's representative had the burden of proof as to the application of the exclusions.” (citations omitted)); Town of Moreau v. Orkin Exterminating Co., Inc., 165 A.D.2d 415, 418, 568 N.Y.S.2d 466 (3d Dep't 1991) (“The burden of establishing that a claim falls within a policy's exclusionary provisions rests with the insurer.”); Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42–43 (2d Cir. 2006). This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 23 (Docket No. 46) (citing 242–44 East 71h Street LLC v. Greater New York Ins. Co., 815 N.Y.S.2d 507, 512 (App. Div. 2006).4.DamagesIf you decide that Falter is entitled to recover under the insurance policy, you must then fix the amount of recovery. You should award Falter the amount of losses it suffered as a result of the incidents at Sawmill and Wetzel that are covered under the provisions of the Policy. You may rely on expert testimony in making this determination, but must give this expert testimony the weight instructed. You need not concern yourselves with the amount of insurance provided under the policy since Falter's claimed damages do not exceed the amount of insurance available to Falter under the policy.Authorities: 0.T. Food & Liquor v. Hartford Insurance Co:., No. 95 C 0845, 1996 WL 131805, at *4 (N.D. Ill. Mar. 21, 1996) (“It is true that under Illinois law, which the parties assume controls this diversity action, the plaintiff bears the burden of providing its damages by a preponderance of the evidence. However, ‘[i]n virtually every type of case involving proof of damages, whether based upon negligence or upon the provisions of a policy, the assessment of damages claimed by the plaintiff is primarily a question of fact within the discretion of the jury.’ In the instant case, the [policyholder's] witnesses claim that all of the inventory in the store was damaged by the fire, but that only some of it was so destroyed as to be unfit for sale. The remainder was either partially damaged or cosmetically altered such that it could not be sold at full price . . . . [T]here is at least some non-speculative, non-conjecture based testimony supporting the [policyholder's] claim of damage. Thus, viewing this eyewitness testimony of [the policyholder] and [the public adjuster] in a light most favorable to [the policyholder], we cannot conclude as a matter of law that the remainder of [the policyholder's] inventory was completely undamaged. Although [the policyholder's] failure to keep detailed records of its ‘2 for 1’ sales, and its decision to move undamaged goods into the store from another location, certainly hampers its ability to prove its damages, we do not believe that it so undermines the [policyholder's] case as to warrant a grant of summary judgment.”); Rubbermaid, Inc. v. Hartford Steam Boilers Inspection Co., 645 N.E.2d 116, 118–19 (Ohio App. 1994) (finding policyholder had borne its burden of proof because juries could come to more than one conclusion as to the policyholder's loss based on the evidence it submitted).5.Covered PropertyUnder the Installation Floater coverage part of the Policy, Cincinnati agreed to pay for loss to covered property. The parties dispute whether certain of the damages Falter claims in this case constitute “loss” to “covered property.”The Installation Floater defines “loss” as “accidental loss or damage.” The Installation Floater defines “Covered Property” as “[Falter's] materials, including labor, and supplies to be used in or incidental to the construction, erection or installation of [concrete construction and materials associated with water treatment facilities].” The Installation Floater covers such property “while . . . on the premises awaiting and during construction, erection, or installation . . ..”All “labor” needed to repair the damage at Sawmill and Wetzel caused by the incidents at those sites and return Falter to the position it was in immediately prior to the incidents, falls within the policy's definition of “Covered Property.”Authorities: Policy at | trial court's dismissal of complaint pursuant to insurance company's motion for summary judgment as ordinary business person would consider loss immediately and visibly occasioned by separation of the pipe, rendering inapplicable policy exclusion for water that overflows from a drain); Neuwirth v. Blue Cross & Blue Shield of Greater N.Y., 62 N.Y.2d 718, 465 N.E.2d 353, 476 N.Y.S.2d 814 (1984) (“The burden of proving that a claim falls within the exclusions of an insurance policy rests with the insurer. Accordingly, the trial court properly ordered a new trial after it recognized that it had erroneously charged the jury that the insured's representative had the burden of proof as to the application of the exclusions.” (citations omitted)); Town of Moreau v. Orkin Exterminating Co., Inc., 165 A.D.2d 415, 418, 568 N.Y.S.2d 466 (3d Dep't 1991) (“The burden of establishing that a claim falls within a policy's exclusionary provisions rests with the insurer.”); Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42–43 (2d Cir. 2006). This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 23 (Docket No. 46) (citing 242–44 East 71h Street LLC v. Greater New York Ins. Co., 815 N.Y.S.2d 507, 512 (App. Div. 2006).4.DamagesIf you decide that Falter is entitled to recover under the insurance policy, you must then fix the amount of recovery. You should award Falter the amount of losses it suffered as a result of the incidents at Sawmill and Wetzel that are covered under the provisions of the Policy. You may rely on expert testimony in making this determination, but must give this expert testimony the weight instructed. You need not concern yourselves with the amount of insurance provided under the policy since Falter's claimed damages do not exceed the amount of insurance available to Falter under the policy.Authorities: 0.T. Food & Liquor v. Hartford Insurance Co:., No. 95 C 0845, 1996 WL 131805, at *4 (N.D. Ill. Mar. 21, 1996) (“It is true that under Illinois law, which the parties assume controls this diversity action, the plaintiff bears the burden of providing its damages by a preponderance of the evidence. However, ‘[i]n virtually every type of case involving proof of damages, whether based upon negligence or upon the provisions of a policy, the assessment of damages claimed by the plaintiff is primarily a question of fact within the discretion of the jury.’ In the instant case, the [policyholder's] witnesses claim that all of the inventory in the store was damaged by the fire, but that only some of it was so destroyed as to be unfit for sale. The remainder was either partially damaged or cosmetically altered such that it could not be sold at full price . . . . [T]here is at least some non-speculative, non-conjecture based testimony supporting the [policyholder's] claim of damage. Thus, viewing this eyewitness testimony of [the policyholder] and [the public adjuster] in a light most favorable to [the policyholder], we cannot conclude as a matter of law that the remainder of [the policyholder's] inventory was completely undamaged. Although [the policyholder's] failure to keep detailed records of its ‘2 for 1’ sales, and its decision to move undamaged goods into the store from another location, certainly hampers its ability to prove its damages, we do not believe that it so undermines the [policyholder's] case as to warrant a grant of summary judgment.”); Rubbermaid, Inc. v. Hartford Steam Boilers Inspection Co., 645 N.E.2d 116, 118–19 (Ohio App. 1994) (finding policyholder had borne its burden of proof because juries could come to more than one conclusion as to the policyholder's loss based on the evidence it submitted).5.Covered PropertyUnder the Installation Floater coverage part of the Policy, Cincinnati agreed to pay for loss to covered property. The parties dispute whether certain of the damages Falter claims in this case constitute “loss” to “covered property.”The Installation Floater defines “loss” as “accidental loss or damage.” The Installation Floater defines “Covered Property” as “[Falter's] materials, including labor, and supplies to be used in or incidental to the construction, erection or installation of [concrete construction and materials associated with water treatment facilities].” The Installation Floater covers such property “while . . . on the premises awaiting and during construction, erection, or installation . . ..”All “labor” needed to repair the damage at Sawmill and Wetzel caused by the incidents at those sites and return Falter to the position it was in immediately prior to the incidents, falls within the policy's definition of “Covered Property.”Authorities: Policy at |
| MA 109 07 91 |
| Sec. A.1.a. and MA 509 01 | Sec. A.1.a. and MA 509 01 |
| 97 |
| at 1; Policy at | at 1; Policy at |
| MA 109 07 91 |
| Sec. A.1.b.(1); Kramnicz v. First Nat'/ Bank of Greene, 32 A.D.2d 1009, 1010, 302 N.Y.S.2d 22, 27 (3d Dep't 1969) (“The purpose of an action on a fire insurance policy is to attempt to put the insured in as good a position as he would have been if no fire had occurred by awarding him the actual cash value of the property lost or damaged.”); SR lnt'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC., No. 01-CV-9291, 2006 WL 3073220, at *7–8 (S.D.N.Y. Oct. 31, 2006) (noting that replacement cost coverage places the policyholder in a better position than it was in before the loss because it provides for the replacement of old damaged property with new property).6.Construction of Ambiguous TermsThe parties dispute whether Falter's damaged sheet piles and bracing are covered under the Policy as “materials and supplies” or are excluded under the Policy because they are “tools and equipment.”I already have found that the Policy terms “materials,” “supplies,” “equipment,” and “tools” as used in the Policy are ambiguous. Under the law, these terms must be construed in favor of Falter and against Cincinnati since it was Cincinnati that drafted the ambiguous terms. Thus, in considering whether Falter's damaged sheet piles and bracing are covered under the Policy as materials and supplies, you must favor Falter's interpretation of these Policy terms and construe them against Cincinnati.Authorities: This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 18 (Docket No. 46); In re Mostow v. State Farm Ins. Cos., 88 N.Y.2d 321, 326, 668 N.E.2d 392, 394, 645 N.Y.S.2d 421, 423 (1996); In re Ancillary Receivership of Reliance Ins. Co., 55 A.D.3d 43, 46, 863 N.Y.S.2d 415, 418 (1st Dep't 2008), | Sec. A.1.b.(1); Kramnicz v. First Nat'/ Bank of Greene, 32 A.D.2d 1009, 1010, 302 N.Y.S.2d 22, 27 (3d Dep't 1969) (“The purpose of an action on a fire insurance policy is to attempt to put the insured in as good a position as he would have been if no fire had occurred by awarding him the actual cash value of the property lost or damaged.”); SR lnt'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC., No. 01-CV-9291, 2006 WL 3073220, at *7–8 (S.D.N.Y. Oct. 31, 2006) (noting that replacement cost coverage places the policyholder in a better position than it was in before the loss because it provides for the replacement of old damaged property with new property).6.Construction of Ambiguous TermsThe parties dispute whether Falter's damaged sheet piles and bracing are covered under the Policy as “materials and supplies” or are excluded under the Policy because they are “tools and equipment.”I already have found that the Policy terms “materials,” “supplies,” “equipment,” and “tools” as used in the Policy are ambiguous. Under the law, these terms must be construed in favor of Falter and against Cincinnati since it was Cincinnati that drafted the ambiguous terms. Thus, in considering whether Falter's damaged sheet piles and bracing are covered under the Policy as materials and supplies, you must favor Falter's interpretation of these Policy terms and construe them against Cincinnati.Authorities: This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 18 (Docket No. 46); In re Mostow v. State Farm Ins. Cos., 88 N.Y.2d 321, 326, 668 N.E.2d 392, 394, 645 N.Y.S.2d 421, 423 (1996); In re Ancillary Receivership of Reliance Ins. Co., 55 A.D.3d 43, 46, 863 N.Y.S.2d 415, 418 (1st Dep't 2008), |
| , | aff'd, |
| 12 N.Y.3d 725, 904 N.E.2d 495, 876 N.Y.S.2d 341 (2009); In re New York Cent. Mut. Fire Ins. Co. v. Ward, 38 A.D.3d 898, 833 N.Y.S.2d 182 (2d Dep't 2007).Author's Comment:As explained in PJI commentary, where an insurance policy may be reasonably interpreted in two conflicting manners, its terms are ambiguous and the parties may submit extrinsic evidence to aid in construction. However, if the insurer does not offer extrinsic evidence, or where such evidence does not resolve the “equivocality” of the language of the contract, the issue remains a question of law for the court, and, under those circumstances, the ambiguity should be construed in favor of the insured and against the insurer. 2B | 12 N.Y.3d 725, 904 N.E.2d 495, 876 N.Y.S.2d 341 (2009); In re New York Cent. Mut. Fire Ins. Co. v. Ward, 38 A.D.3d 898, 833 N.Y.S.2d 182 (2d Dep't 2007).Author's Comment:As explained in PJI commentary, where an insurance policy may be reasonably interpreted in two conflicting manners, its terms are ambiguous and the parties may submit extrinsic evidence to aid in construction. However, if the insurer does not offer extrinsic evidence, or where such evidence does not resolve the “equivocality” of the language of the contract, the issue remains a question of law for the court, and, under those circumstances, the ambiguity should be construed in favor of the insured and against the insurer. 2B |
| NY PJI2d 4:45 |
| at 352 to 353 (2018).7.Delay Exclusion/Burden of ProofThe policy does not pay for loss caused by or resulting from delay. Cincinnati contends that the amounts Falter seeks to recover in this lawsuit for its extended general conditions or increased field overhead, such as extra supervisory and management time, were caused by delay and thus fall within this exclusion. Falter contends that its extended general conditions, including its extra supervisory and management time, are the result of increased work effort necessitated by the incidents at Sawmill and Wetzel, not delay. If you find that Falter's claimed extended general conditions were caused by or resulted from delay, then you must find that Falter's extended general conditions are not covered under the policy. If, on the other hand, you find that Falter's extended general conditions resulted from something other than delay, such as increased work effort, then you must find that Falter's extended general conditions are covered under the policy.It is Cincinnati's burden to demonstrate that it is more likely than not that Falter's claimed extended general conditions were caused by or resulted from delay.Authorities: This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 20 (Docket No. 46); Policy at Form | at 352 to 353 (2018).7.Delay Exclusion/Burden of ProofThe policy does not pay for loss caused by or resulting from delay. Cincinnati contends that the amounts Falter seeks to recover in this lawsuit for its extended general conditions or increased field overhead, such as extra supervisory and management time, were caused by delay and thus fall within this exclusion. Falter contends that its extended general conditions, including its extra supervisory and management time, are the result of increased work effort necessitated by the incidents at Sawmill and Wetzel, not delay. If you find that Falter's claimed extended general conditions were caused by or resulted from delay, then you must find that Falter's extended general conditions are not covered under the policy. If, on the other hand, you find that Falter's extended general conditions resulted from something other than delay, such as increased work effort, then you must find that Falter's extended general conditions are covered under the policy.It is Cincinnati's burden to demonstrate that it is more likely than not that Falter's claimed extended general conditions were caused by or resulted from delay.Authorities: This Court's Decision and Order on the parties motions for summary judgment, dated March 23, 2012, at 20 (Docket No. 46); Policy at Form |
| , | MA 109 07 91, |
| Sec. B.2.b.; Neuwirth v. Blue Cross & Blue Shield of Greater N.Y., 62 N.Y.2d 718, 465 N.E.2d 353, 476 N.Y.S.2d 814 (1984) (“The burden of proving that a claim falls within the exclusions of an insurance policy rests with the insurer. Accordingly, the trial court properly ordered a new trial after it recognized that it had erroneously charged the jury that the insured's representative had the burden of proof as to the application of the exclusions.” (citations omitted)); Town of Moreau v. Orkin Exterminating Co., Inc., 165 A.D.2d 415, 418, 568 N.Y.S.2d 466 (3d Dep't 1991) (“The burden of establishing that a claim falls within a policy's exclusionary provisions rests with the insurer.”); Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42–43 (2d Cir. 2006).8.Coverage for Overhead and ProfitFalter seeks as part of its damages in this case 20% overhead and profit on the repair/replacement costs it claims in connection with the Sawmill and Wetzel incidents. You must award Falter its claimed overhead and profit if you find that the repair/replacement work that was done to address the Sawmill and/or Wetzel incidents was reasonably likely to require the services of a general contractor. General contractor services are needed where the work requires coordination between or among two or more types or labor and/or professional services. In your deliberations, you should consider the fact that Falter did in fact perform general contracting services in connection with the repair/replacement work at Sawmill and Wetzel.Authorities: Mazzocki v. State Farm Fire & Cas. Corp., 766 N.Y.S.2d 719, 722 (App. Div. 2003); Mills v. Foremost Ins. Co., 511 F.3d 1300, 1305 (11th Cir. 2008); Tritschler v. Allstate Ins. Co., 144 P.3d 519, 529 (Ariz. Ct. App. 2006); Salesin v. State Farm Fire & Cas. Co., 581 N.W.2d 781, 786 (Mich. Ct. App. 1998); Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 350 (Pa. Super. Ct. 2006); Gilderman v. State Farm Ins. Co., 649 A.2d 941, 945 (Pa. Super. Ct. 1994).9.Prejudgment InterestIf you find that Cincinnati breached its contractual obligation to pay for losses to covered property that Falter suffered as a result of the Sawmill and/or Wetzel incidents, the earliest ascertainable date that Falter's breach of contract causes of action against Cincinnati existed will determine the time from which interest will be computed. Since there is a dispute in this case concerning the date or dates when Falter's breach of contract causes of action against Cincinnati first existed, you must, in rendering your verdict, fix that date. A breach of contract cause of action first exits when the defendant fails to fulfill a contractual obligation to the plaintiff, even if monetary loss was not suffered until a later time.Authorities: | Sec. B.2.b.; Neuwirth v. Blue Cross & Blue Shield of Greater N.Y., 62 N.Y.2d 718, 465 N.E.2d 353, 476 N.Y.S.2d 814 (1984) (“The burden of proving that a claim falls within the exclusions of an insurance policy rests with the insurer. Accordingly, the trial court properly ordered a new trial after it recognized that it had erroneously charged the jury that the insured's representative had the burden of proof as to the application of the exclusions.” (citations omitted)); Town of Moreau v. Orkin Exterminating Co., Inc., 165 A.D.2d 415, 418, 568 N.Y.S.2d 466 (3d Dep't 1991) (“The burden of establishing that a claim falls within a policy's exclusionary provisions rests with the insurer.”); Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42–43 (2d Cir. 2006).8.Coverage for Overhead and ProfitFalter seeks as part of its damages in this case 20% overhead and profit on the repair/replacement costs it claims in connection with the Sawmill and Wetzel incidents. You must award Falter its claimed overhead and profit if you find that the repair/replacement work that was done to address the Sawmill and/or Wetzel incidents was reasonably likely to require the services of a general contractor. General contractor services are needed where the work requires coordination between or among two or more types or labor and/or professional services. In your deliberations, you should consider the fact that Falter did in fact perform general contracting services in connection with the repair/replacement work at Sawmill and Wetzel.Authorities: Mazzocki v. State Farm Fire & Cas. Corp., 766 N.Y.S.2d 719, 722 (App. Div. 2003); Mills v. Foremost Ins. Co., 511 F.3d 1300, 1305 (11th Cir. 2008); Tritschler v. Allstate Ins. Co., 144 P.3d 519, 529 (Ariz. Ct. App. 2006); Salesin v. State Farm Fire & Cas. Co., 581 N.W.2d 781, 786 (Mich. Ct. App. 1998); Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 350 (Pa. Super. Ct. 2006); Gilderman v. State Farm Ins. Co., 649 A.2d 941, 945 (Pa. Super. Ct. 1994).9.Prejudgment InterestIf you find that Cincinnati breached its contractual obligation to pay for losses to covered property that Falter suffered as a result of the Sawmill and/or Wetzel incidents, the earliest ascertainable date that Falter's breach of contract causes of action against Cincinnati existed will determine the time from which interest will be computed. Since there is a dispute in this case concerning the date or dates when Falter's breach of contract causes of action against Cincinnati first existed, you must, in rendering your verdict, fix that date. A breach of contract cause of action first exits when the defendant fails to fulfill a contractual obligation to the plaintiff, even if monetary loss was not suffered until a later time.Authorities: |
| ; | CPLR 5001(a); |
| N.Y. Pattern Jury lnstr.—Civil 4:20 (3d ed.)[sic]; N.Y. Pattern Jury lnstr.—Civil 2:313 (3d ed.); Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052, 1055, 872 N.Y.S.2d 725, 728 (3d Dep't 2009) (“The elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage”); “[!)interest shall be computed from the earliest ascertainable date the cause of action existed . . ..”’ Brushton-Moira Cent. Sch. District v. Fred H. Thomas Assocs, P.C., 91 N.Y.2d 256, 262 (N.Y. 1998) (quoting CPLR 5001[b)). The “clear statutory direction” dictates that “interest must be computed from the date of accrual.” /d. (emphasis in original). A cause of action for breach of contract accrues at the time of the breach. Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402 (N.Y. 1993). This is true even if damages do not accrue until a later time. See, e.g. | N.Y. Pattern Jury lnstr.—Civil 4:20 (3d ed.)[sic]; N.Y. Pattern Jury lnstr.—Civil 2:313 (3d ed.); Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052, 1055, 872 N.Y.S.2d 725, 728 (3d Dep't 2009) (“The elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage”); “[!)interest shall be computed from the earliest ascertainable date the cause of action existed . . ..”’ Brushton-Moira Cent. Sch. District v. Fred H. Thomas Assocs, P.C., 91 N.Y.2d 256, 262 (N.Y. 1998) (quoting CPLR 5001[b)). The “clear statutory direction” dictates that “interest must be computed from the date of accrual.” /d. (emphasis in original). A cause of action for breach of contract accrues at the time of the breach. Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402 (N.Y. 1993). This is true even if damages do not accrue until a later time. See, e.g. |
| id. |
| (‘‘ ‘Nominal damages are always available in breach of contract actions’ ” (citations omitted)); Brushton-Moira Cent. Sch. District v. Fred H. Thomas Assocs., P.C., 91 N.Y.2d 256, 262 (N.Y. 1998) (“[D)amages are properly ascertained as of the date of the breach and . . . there may be a time lag between the accrual of plaintiff's cause of action and the resulting damage sustained and actual payment by defendant” (citations omitted)); Nat'/ Urban Ventures, Inc. v. City of Niagara Falls, 910 N.Y.S.2d 615,616 (4th Dep't 2010) (‘‘ ‘In New York, a breach of contract cause of action accrues at the time of the breach,’ even in the event that damages do not accrue until a later date” (citations omitted)); see also Brushton-Moira Cent. Sch. District v. Fred H. Thomas Assocs., P.C., 91 N.Y.2d 256, 261 (N.Y. 1998) (“Damages are intended to return the parties to the point at which the breach arose and to place the nonbreaching party in as good a position as it would have been had the contract been performed.”).2. Instructions Proposed by Defendant1. Purpose of “Installation Floater” coverageGenerally, the essential purpose of “Installation Floater” coverage is to provide insurance for materials and supplies which are intended to be incorporated into a building or structure, but sustain damage before such installation is completed. Here, for property to be covered, it must have consisted of materials or supplies owned by Falter. Those materials and supplies must have been on the Sawmill site or on the Wetzel site, and have been intended to be used in the construction, erection or installation of concrete and materials associated with the Sawmill or Headwork's sites.Authorities: Mu Chapter of Sigma Pi Fraternity of the US. v. Northeast Construction Services, Inc., 273 A.D.2d 579, 580, 70 N.Y.S.2d 677, 679 (N.Y. App., Div., 3d Dept., (2000); Hanson's, Inc. v. Great Southwest Fire Ins. Co., 118 Ariz. 256, 258, 575 P.2d 1282, 1284 (1978).2. Role of court and juryThe Court will interpret and apply the insurance policy terms here, because they involve questions of law. Your role is to decide the facts. In this regard, it is your job to resolve the differences between the parties about what happened at the Sawmill site and the Headworks site. Thus, you are to assist the Court in resolving disputes over the underlying facts, but the Court, and not you the jury, will interpret the policy and determine how it should apply to those facts.Authorities: CheckriteLtd, Inc. v. Illinois National Ins. Co., 95 F.Supp.2d 180, 188–189 (S.D.N.Y. 2000).3. Issues for juryYou are to decide the following, essential questions:1. Whether the plaintiff, C.O. Falter Construction Corporation, sustained a “loss” to “Covered Property”? The Court will instruct you regarding the meaning of the terms “loss” and “Covered Property.”2. If C.O. Falter Construction Corporation sustained a “loss” to “Covered Property,” is coverage nevertheless excluded by one of the exclusions from coverage in the Installation Floater?3. If C.O. Falter Construction Corporation sustained a “loss” to “Covered Property,” and no exclusion from coverage applies, what is the amount of damages Falter may recover for breach of contract?Authorities: Mu Chapter of Sigma Pi Fraternity of the US. v. Northeast Construction Services, Inc., 273 A.D.2d 579, 580, 70 N.Y.S.2d 677, 679 (N.Y. App., Div., 3d Dept., (2000).4. Coverage of cost of laborThe cost of labor is covered under the Cincinnati Installation Floater, but only if the labor was used to repair or replace Falter's damaged materials or supplies.Authorities: See U.S. Undenvriters Ins. Co. v. Congregation B'Nai Israel, 900 F.Supp. 641, 644 (E.D.N.Y. 1995) (unambiguous insurance provisions must be given their “plain and ordinary meaning”); Garson Management Co., LLC v. Travelers Indemnity Co. of Illinois, 300 A.D.2d 538, 539, 752 N.Y.S.2d 696, 697 (N.Y. App. Div. 2nd Dept. 2002) (same).5. Factual finding of court regarding movement of earth; effect as to coverageYou are instructed that it has already been determined by the Court that, at both Sawmill Creek and Wetzel Road, the earth moved within the meaning of the earth movement exclusion of the Installation Floater coverage. However, there can still be coverage despite this exclusion, but only if a “total or partial collapse” occurred at either site.Authorities: Order, March 23, 2012, at pp. 19–20.6. Meaning of “collapse or partial collapse”For there to be a collapse or partial collapse, there must be a substantial impairment of the structural integrity of a building or structure. Sinking, out of plumb, and leaning buildings and structures are examples of things that are not collapse or partial collapse.Authorities: Royal Indemnity Co. v. Grunberg, 155 A.D.2d 187, 189, 553 N.Y.S.2d 527, 529 (3rd Dept. 1990); Rector St. Food Enterprises, Ltd v. Fire & Casualty Ins. Co. of Conn., 35 A.D.3d 177, 827 N.Y.S.2d 18 (1st Dept. 2006); Chiang v. Public Service Mut. Ins. Co., 21 Misc.3d 1140(A), 880 N.Y.S.2d 222 (Table), 2008 WL 5137081 at *2 (N.Y.Sup. 2008).7. Exclusion of certain losses if caused by plaintiffThe Installation Floater excludes from coverage any loss caused by inadequate, defective, error or omission in, or insufficiency in design, construction or workmanship. However, any excluded inadequate, defective, error or omission in, or insufficiency in design, construction or workmanship must have been Falter's responsibility.Authorities: Order, March 23, 2012, at pp. 23–24; Wider v. Heritage Maintenance, Inc., 14 Misc.3d 963, 971–976, 827 N.Y.S.2d 837, 845–848 (N.Y. Sup. Ct. 2007); Narob Development Corp. v. Insurance Company of North America, 219 A.D.2d 454, 631 N.Y.S.2d 155 (N.Y. App. Div., 1st Dept. 1995).8. Exclusion of damage to tools and equipmentThe Installation Floater excludes from coverage loss that involves damage to tools and equipment. To the extent that you find that any of the loss sought by Falter involves tools or equipment, that loss is not covered.Authorities: See U.S. Undenvriters Ins. Co. v. Congregation B'Nai Israel, 900 F.Supp. 641, 644 (E.D.N.Y. 1995) (unambiguous insurance provisions must be given their “plain and ordinary meaning”); Garson Management Co., LLC v. Travelers Indemnity Co. of Illinois, 300 A.D.2d 538, 539, 752 N.Y.S.2d 696, 697 (N.Y. App. Div. 2nd Dept. 2002) (same).9. Recovery for damage to plaintiff's materials or suppliesIt is for you to decide from the evidence whether the damage for which Falter seeks recovery was to Falter's materials or supplies at the Sawmill or Wetzel Road sites. If you find that the damage was not to materials or supplies at those sites, as Falter claims, you will find for the defendant Cincinnati Insurance. If you find that the damage was to materials and supplies, as Falter claims, then you shall determine the amount of damages Falter may recover with respect to that loss. Recoverable damages must be for losses related to the repair or replacement of damaged materials or supplies, including labor costs incurred to repair or replace those materials or supplies.Authorities: New York Pattern Jury Instructions Civil-4:47 (3d Edition) [sic] (Modified)10. Amount of recoveryIf you decide that the plaintiff is entitled to recover under the insurance policy, you must then fix the amount of recovery. The policy provides that the defendant Cincinnati insurance insured the property to an amount not exceeding $3 million, to the extent of the actual cash value of the property at the time of the loss, but not exceeding the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss.You will decide the actual cash value of the damaged materials or supplies, that is, what they were worth at the time of the fire, by taking into consideration the evidence you have heard concerning the original cost of the materials or supplies; the condition of the materials or supplies and the uses to which they could be put; plaintiffs statements concerning the value of the materials or supplies; the cost of restoring the materials or supplies to their condition at the time of the incidents, including labor; and the market value of the materials or supplies.Under the policy, the cost of repair, replacement that you may consider is the cost of repair or replacement with material of like kind and quality within a reasonable time after the loss. In that calculation you are concerned only with the cost of restoring the materials or supplies to their condition prior to the loss.Your verdict, if you find for the plaintiff, will be the lowest of these three amounts, (1) the face amount of the policy which is $3 million or (2) the actual cash value of the materials or supplies at the time of the loss, or (3) the cost of repair, replacement with materials or supplies of like kind and quality within a reasonable time after the loss.Authorities: | (‘‘ ‘Nominal damages are always available in breach of contract actions’ ” (citations omitted)); Brushton-Moira Cent. Sch. District v. Fred H. Thomas Assocs., P.C., 91 N.Y.2d 256, 262 (N.Y. 1998) (“[D)amages are properly ascertained as of the date of the breach and . . . there may be a time lag between the accrual of plaintiff's cause of action and the resulting damage sustained and actual payment by defendant” (citations omitted)); Nat'/ Urban Ventures, Inc. v. City of Niagara Falls, 910 N.Y.S.2d 615,616 (4th Dep't 2010) (‘‘ ‘In New York, a breach of contract cause of action accrues at the time of the breach,’ even in the event that damages do not accrue until a later date” (citations omitted)); see also Brushton-Moira Cent. Sch. District v. Fred H. Thomas Assocs., P.C., 91 N.Y.2d 256, 261 (N.Y. 1998) (“Damages are intended to return the parties to the point at which the breach arose and to place the nonbreaching party in as good a position as it would have been had the contract been performed.”).2. Instructions Proposed by Defendant1. Purpose of “Installation Floater” coverageGenerally, the essential purpose of “Installation Floater” coverage is to provide insurance for materials and supplies which are intended to be incorporated into a building or structure, but sustain damage before such installation is completed. Here, for property to be covered, it must have consisted of materials or supplies owned by Falter. Those materials and supplies must have been on the Sawmill site or on the Wetzel site, and have been intended to be used in the construction, erection or installation of concrete and materials associated with the Sawmill or Headwork's sites.Authorities: Mu Chapter of Sigma Pi Fraternity of the US. v. Northeast Construction Services, Inc., 273 A.D.2d 579, 580, 70 N.Y.S.2d 677, 679 (N.Y. App., Div., 3d Dept., (2000); Hanson's, Inc. v. Great Southwest Fire Ins. Co., 118 Ariz. 256, 258, 575 P.2d 1282, 1284 (1978).2. Role of court and juryThe Court will interpret and apply the insurance policy terms here, because they involve questions of law. Your role is to decide the facts. In this regard, it is your job to resolve the differences between the parties about what happened at the Sawmill site and the Headworks site. Thus, you are to assist the Court in resolving disputes over the underlying facts, but the Court, and not you the jury, will interpret the policy and determine how it should apply to those facts.Authorities: CheckriteLtd, Inc. v. Illinois National Ins. Co., 95 F.Supp.2d 180, 188–189 (S.D.N.Y. 2000).3. Issues for juryYou are to decide the following, essential questions:1. Whether the plaintiff, C.O. Falter Construction Corporation, sustained a “loss” to “Covered Property”? The Court will instruct you regarding the meaning of the terms “loss” and “Covered Property.”2. If C.O. Falter Construction Corporation sustained a “loss” to “Covered Property,” is coverage nevertheless excluded by one of the exclusions from coverage in the Installation Floater?3. If C.O. Falter Construction Corporation sustained a “loss” to “Covered Property,” and no exclusion from coverage applies, what is the amount of damages Falter may recover for breach of contract?Authorities: Mu Chapter of Sigma Pi Fraternity of the US. v. Northeast Construction Services, Inc., 273 A.D.2d 579, 580, 70 N.Y.S.2d 677, 679 (N.Y. App., Div., 3d Dept., (2000).4. Coverage of cost of laborThe cost of labor is covered under the Cincinnati Installation Floater, but only if the labor was used to repair or replace Falter's damaged materials or supplies.Authorities: See U.S. Undenvriters Ins. Co. v. Congregation B'Nai Israel, 900 F.Supp. 641, 644 (E.D.N.Y. 1995) (unambiguous insurance provisions must be given their “plain and ordinary meaning”); Garson Management Co., LLC v. Travelers Indemnity Co. of Illinois, 300 A.D.2d 538, 539, 752 N.Y.S.2d 696, 697 (N.Y. App. Div. 2nd Dept. 2002) (same).5. Factual finding of court regarding movement of earth; effect as to coverageYou are instructed that it has already been determined by the Court that, at both Sawmill Creek and Wetzel Road, the earth moved within the meaning of the earth movement exclusion of the Installation Floater coverage. However, there can still be coverage despite this exclusion, but only if a “total or partial collapse” occurred at either site.Authorities: Order, March 23, 2012, at pp. 19–20.6. Meaning of “collapse or partial collapse”For there to be a collapse or partial collapse, there must be a substantial impairment of the structural integrity of a building or structure. Sinking, out of plumb, and leaning buildings and structures are examples of things that are not collapse or partial collapse.Authorities: Royal Indemnity Co. v. Grunberg, 155 A.D.2d 187, 189, 553 N.Y.S.2d 527, 529 (3rd Dept. 1990); Rector St. Food Enterprises, Ltd v. Fire & Casualty Ins. Co. of Conn., 35 A.D.3d 177, 827 N.Y.S.2d 18 (1st Dept. 2006); Chiang v. Public Service Mut. Ins. Co., 21 Misc.3d 1140(A), 880 N.Y.S.2d 222 (Table), 2008 WL 5137081 at *2 (N.Y.Sup. 2008).7. Exclusion of certain losses if caused by plaintiffThe Installation Floater excludes from coverage any loss caused by inadequate, defective, error or omission in, or insufficiency in design, construction or workmanship. However, any excluded inadequate, defective, error or omission in, or insufficiency in design, construction or workmanship must have been Falter's responsibility.Authorities: Order, March 23, 2012, at pp. 23–24; Wider v. Heritage Maintenance, Inc., 14 Misc.3d 963, 971–976, 827 N.Y.S.2d 837, 845–848 (N.Y. Sup. Ct. 2007); Narob Development Corp. v. Insurance Company of North America, 219 A.D.2d 454, 631 N.Y.S.2d 155 (N.Y. App. Div., 1st Dept. 1995).8. Exclusion of damage to tools and equipmentThe Installation Floater excludes from coverage loss that involves damage to tools and equipment. To the extent that you find that any of the loss sought by Falter involves tools or equipment, that loss is not covered.Authorities: See U.S. Undenvriters Ins. Co. v. Congregation B'Nai Israel, 900 F.Supp. 641, 644 (E.D.N.Y. 1995) (unambiguous insurance provisions must be given their “plain and ordinary meaning”); Garson Management Co., LLC v. Travelers Indemnity Co. of Illinois, 300 A.D.2d 538, 539, 752 N.Y.S.2d 696, 697 (N.Y. App. Div. 2nd Dept. 2002) (same).9. Recovery for damage to plaintiff's materials or suppliesIt is for you to decide from the evidence whether the damage for which Falter seeks recovery was to Falter's materials or supplies at the Sawmill or Wetzel Road sites. If you find that the damage was not to materials or supplies at those sites, as Falter claims, you will find for the defendant Cincinnati Insurance. If you find that the damage was to materials and supplies, as Falter claims, then you shall determine the amount of damages Falter may recover with respect to that loss. Recoverable damages must be for losses related to the repair or replacement of damaged materials or supplies, including labor costs incurred to repair or replace those materials or supplies.Authorities: New York Pattern Jury Instructions Civil-4:47 (3d Edition) [sic] (Modified)10. Amount of recoveryIf you decide that the plaintiff is entitled to recover under the insurance policy, you must then fix the amount of recovery. The policy provides that the defendant Cincinnati insurance insured the property to an amount not exceeding $3 million, to the extent of the actual cash value of the property at the time of the loss, but not exceeding the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss.You will decide the actual cash value of the damaged materials or supplies, that is, what they were worth at the time of the fire, by taking into consideration the evidence you have heard concerning the original cost of the materials or supplies; the condition of the materials or supplies and the uses to which they could be put; plaintiffs statements concerning the value of the materials or supplies; the cost of restoring the materials or supplies to their condition at the time of the incidents, including labor; and the market value of the materials or supplies.Under the policy, the cost of repair, replacement that you may consider is the cost of repair or replacement with material of like kind and quality within a reasonable time after the loss. In that calculation you are concerned only with the cost of restoring the materials or supplies to their condition prior to the loss.Your verdict, if you find for the plaintiff, will be the lowest of these three amounts, (1) the face amount of the policy which is $3 million or (2) the actual cash value of the materials or supplies at the time of the loss, or (3) the cost of repair, replacement with materials or supplies of like kind and quality within a reasonable time after the loss.Authorities: |
| New York Pattern Jury Instructions Civil 4:49 |
| (3d Edition)[sic](Modified)C. Case documents Available on Westlaw1.Particular documentsPleading, Complaint, 2009 WL 2250166Trial Memorandum, Plaintiff's Opposition to Defendant's Motion in Limine to Exclude All Evidence Regarding Claims Handling, 2012 WL 6093647Trial Memorandum, Plaintiff's Opposition to Defendant's Motion in Limine to Preclude All Evidence of Any Alleged Losses not Directly Related to the Repair or Replacement, 2012 WL 6093648Trial Memorandum, Defendant's Opposition to Plaintiff's Motion in Limine to Preclude Evidence and Argument On Ambiguous Policy Terms, 2012 WL 6093649Trial Memorandum, Defendant's Opposition to Plaintiff's Motion in Limine to Preclude Argument or Reference to “Collapse” as Opposed to “Substantial Impairment,” 2012 WL 6093653Trial Motion, Motion in Limine to Exclude All Evidence Regarding Claims Handling, 2012 WL 6093521Trial Motion, Motion in Limine to Preclude Introduction of Evidence of Other Insurance Claims, 2012 WL 6093523Trial Memorandum, Plaintiff C.O. Falter Construction Corporation's Trial Brief, 2012 WL 6093588Trial Motion, Plaintiff's Motion in Limine to Preclude Argument Regarding or Reference to “Collapse” as Opposed to “Substantial Impairment,” | (3d Edition)[sic](Modified)C. Case documents Available on Westlaw1.Particular documentsPleading, Complaint, 2009 WL 2250166Trial Memorandum, Plaintiff's Opposition to Defendant's Motion in Limine to Exclude All Evidence Regarding Claims Handling, 2012 WL 6093647Trial Memorandum, Plaintiff's Opposition to Defendant's Motion in Limine to Preclude All Evidence of Any Alleged Losses not Directly Related to the Repair or Replacement, 2012 WL 6093648Trial Memorandum, Defendant's Opposition to Plaintiff's Motion in Limine to Preclude Evidence and Argument On Ambiguous Policy Terms, 2012 WL 6093649Trial Memorandum, Defendant's Opposition to Plaintiff's Motion in Limine to Preclude Argument or Reference to “Collapse” as Opposed to “Substantial Impairment,” 2012 WL 6093653Trial Motion, Motion in Limine to Exclude All Evidence Regarding Claims Handling, 2012 WL 6093521Trial Motion, Motion in Limine to Preclude Introduction of Evidence of Other Insurance Claims, 2012 WL 6093523Trial Memorandum, Plaintiff C.O. Falter Construction Corporation's Trial Brief, 2012 WL 6093588Trial Motion, Plaintiff's Motion in Limine to Preclude Argument Regarding or Reference to “Collapse” as Opposed to “Substantial Impairment,” |
| Trial | 2012 WL 6093650Trial |
| Motion, Plaintiff's Motion in Limine to Preclude Evidence and Argument On Ambiguous Policy Terms, 2012 WL 6093651Trial Memorandum, Defendant's Trial Brief, 2012 WL 6093676Proposed Jury Instruction, Plaintiff's Requests to Charge, 2012 WL 6093642Docket, Docket 5:09cv005652.Sample Westlaw Query for Trial Court Documents in Similar Cases: “installation floater”D. Research References1.Key | Motion, Plaintiff's Motion in Limine to Preclude Evidence and Argument On Ambiguous Policy Terms, 2012 WL 6093651Trial Memorandum, Defendant's Trial Brief, 2012 WL 6093676Proposed Jury Instruction, Plaintiff's Requests to Charge, 2012 WL 6093642Docket, Docket 5:09cv005652.Sample Westlaw Query for Trial Court Documents in Similar Cases: “installation floater”D. Research References1.Key |
| Numbers , , | NumbersInsurance 1808, 1825, 1835Trial 182 |
| to | to |
| 2.Westlaw | 2692.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Insurance LawInsurance Coverage of Construction Disputes4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:97§ 13:6 Contractual misrepresentation and conversion; sale of businessA. BackgroundType of Case: Misrepresentation in connection with contract for sale of businessType of Damages: Damages for breach of contract, fraudulent and negligent misrepresentation; trespass and conversion; punitive damagesCase Name: Richard Randazzo, Gloria Randazzo, and Randazzo's Delicatessen and Salumeria, Inc., Plaintiffs, v. Donna Gentile, Michael Gentile, Gentiles Inc., Vincent J. Casale, and Vincent J. Casale & Co., Defendant.Court: New York State Supreme Court, Richmond CountyJudge: Hon. Alan C. MarinDocket Number: 103854/11Calendar No.: 82334Outcome: Verdict for plaintiff Gloria Randazzo, damages of $70,000 total, consisting of $50,000 attributable to misinformation and $20,000 attributable to misappropriation of assets following the saleDate of verdict: May 8, 2014Brief Summary of Factual Allegations: The plaintiff alleged they entered into a contract to purchase the assets of the defendants' business, a delicatessen, as well as all other ownership interests in the assets, but claimed they were not informed of tax liens in favor of New York State existing at the time of the sale; subsequent to the sale, it was alleged that the defendants entered onto the premises of the business purchased by the plaintiffs and removed and converted various equipment and fixtures belong to the business. Defendants counterclaimed that plaintiffs were in default under their stock pledge agreement.B. Proposed Jury Instructions1.Jury instructions proposed by | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—New York Insurance LawInsurance Coverage of Construction Disputes4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:97§ 13:6 Contractual misrepresentation and conversion; sale of businessA. BackgroundType of Case: Misrepresentation in connection with contract for sale of businessType of Damages: Damages for breach of contract, fraudulent and negligent misrepresentation; trespass and conversion; punitive damagesCase Name: Richard Randazzo, Gloria Randazzo, and Randazzo's Delicatessen and Salumeria, Inc., Plaintiffs, v. Donna Gentile, Michael Gentile, Gentiles Inc., Vincent J. Casale, and Vincent J. Casale & Co., Defendant.Court: New York State Supreme Court, Richmond CountyJudge: Hon. Alan C. MarinDocket Number: 103854/11Calendar No.: 82334Outcome: Verdict for plaintiff Gloria Randazzo, damages of $70,000 total, consisting of $50,000 attributable to misinformation and $20,000 attributable to misappropriation of assets following the saleDate of verdict: May 8, 2014Brief Summary of Factual Allegations: The plaintiff alleged they entered into a contract to purchase the assets of the defendants' business, a delicatessen, as well as all other ownership interests in the assets, but claimed they were not informed of tax liens in favor of New York State existing at the time of the sale; subsequent to the sale, it was alleged that the defendants entered onto the premises of the business purchased by the plaintiffs and removed and converted various equipment and fixtures belong to the business. Defendants counterclaimed that plaintiffs were in default under their stock pledge agreement.B. Proposed Jury Instructions1.Jury instructions proposed by |
| plaintiff1. | plaintiff1.PJI 1:1 |
| Introduction to | Introduction to |
| Jury2. Parties3. | Jury2.PJI 1:2 Parties3.PJI 1:3 |
| Openings and | Openings and |
| Evidence4. | Evidence4.PJI 1:4 |
| Objections, Motions, | Objections, Motions, |
| Exceptions5. Summations6. | Exceptions5.PJI 1:5 Summations6.PJI 1:6 |
| Function of Court and | Function of Court and |
| Jury7. | Jury7.PJI 1:7 |
| Consider only competent | Consider only competent |
| Evidence8. | Evidence8.PJI 1:8 |
| Weighing | Weighing |
| Testimony9. | Testimony9.PJI 1:9 |
| Conduct During | Conduct During |
| Recess10. | Recess10.PJI 1:11 |
| Discussion With | Discussion With |
| Others11. | Others11.PJI 1:12 |
| Discussion by | Discussion by |
| Others12. | Others12.PJI 1:13 |
| Conversation with Parties or Attorneys13.PJI l:13A Alternate | Conversation with Parties or Attorneys13.PJI l:13A Alternate |
| Jurors14. Conclusion15. | Jurors14.PJI 1:14 Conclusion15.PJI 1:60 |
| General Instruction- Burden of Proof—When Burden Differs on Different | General Instruction- Burden of Proof—When Burden Differs on Different |
| Issues16. | Issues16.PJI 1:64 |
| General Instruction- Burden of Proof—Clear and Convincing | General Instruction- Burden of Proof—Clear and Convincing |
| Evidence17. | Evidence17.PJI 1:70 |
| Circumstantial | Circumstantial |
| Evidence18. | Evidence18.PJI 1:90 |
| Expert Witness19.PJI l:91 Interested | Expert Witness19.PJI l:91 Interested |
| Witness20. | Witness20.PJI 1:94 |
| Use of Pre-Trial Deposition Upon | Use of Pre-Trial Deposition Upon |
| Trial21. | Trial21.PJI 2:10 |
| Common Law Standard of Care—Negligence | Common Law Standard of Care—Negligence |
| Defined22. Damages—Punitive23. | Defined22.PJI 2:278 Damages—Punitive23.PJI 2:230 |
| Negligent | Negligent |
| Misrepresentation24. | Misrepresentation24.PJI 3:10 |
| Intentional Torts—Interference with Person or Property—Conversion—Wrongful | Intentional Torts—Interference with Person or Property—Conversion—Wrongful |
| Taking25. | Taking25.PJI 3:20 |
| Intentional Torts—Fraud And | Intentional Torts—Fraud And |
| Deceit26..I | Deceit26.PJI 3:20.I |
| Intentional Tort— Fraud And Deceit (Supplemental | Intentional Tort— Fraud And Deceit (Supplemental |
| Instruction)27. | Instruction)27.PJI 3:8 |
| intentional Torts—Interference with Person or Property—Trespass to | intentional Torts—Interference with Person or Property—Trespass to |
| Land28. | Land28.PJI 3:9 |
| Intentional Torts—Interference with Person or Property—Trespass to | Intentional Torts—Interference with Person or Property—Trespass to |
| Chattels29. Contracts—Elements30. | Chattels29.PJI 4:1 Contracts—Elements30.PJI 4:10 |
| Contracts—Consent—Fraud In the | Contracts—Consent—Fraud In the |
| Execution31. | Execution31.PJI 4:20 |
| Contracts—Damages—GenerallyPlaintiff's Proposed Charges After | Contracts—Damages—GenerallyPlaintiff's Proposed Charges After |
| Trial1. Introduction2.-21 | Trial1.PJI 1:20 Introduction2.PJI 1-21 |
| Review Principles | Review Principles |
| Staled3. | Staled3.PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4.PJI 1:24 |
| Return to | Return to |
| Courtroom5. | Courtroom5.PJI 1:25 |
| Consider Only Testimony and | Consider Only Testimony and |
| Exhibits6. | Exhibits6.PJI 1:25A |
| Juror's Use of Professional | Juror's Use of Professional |
| Expertise7. | Expertise7.PJI 1:26 |
| Five-Sixths | Five-Sixths |
| Verdict8. | Verdict8.PJI 1:27 |
| Exclude | Exclude |
| Sympathy9..28 Conclusion10. | Sympathy9.PJI 1.28 Conclusion10.PJI 1:29 |
| Alternate Jurors2.Jury instructions proposed by | Alternate Jurors2.Jury instructions proposed by |
| defendants1. Introduction2. | defendants1.PJI 1:20 Introduction2.PJI 1:21 |
| Review Principles | Review Principles |
| Stated3. | Stated3.PJI 1:22 |
| Falsus in | Falsus in |
| Uno4. | Uno4.PJI 1:23 |
| Burden of | Burden of |
| Proof5. | Proof5.PJI 1:23 |
| [modified] (A charge similar to | [modified] (A charge similar to |
| PJI 1:23 |
| should be given with respect to the burden of proof on the party asserting the | should be given with respect to the burden of proof on the party asserting the |
| counterclaim.).6. | counterclaim.).6.PJI 1:24 |
| Return to | Return to |
| Courtroom7. | Courtroom7.PJI 1:25 |
| Consider only Testimony and | Consider only Testimony and |
| Exhibits8. | Exhibits8.PJI 11:26 |
| Five-Sixths | Five-Sixths |
| Verdict9. | Verdict9.PJI 1:27 |
| Exclude | Exclude |
| Sympathy10. | Sympathy10.PJI 1:60 |
| General Instruction: Burden of | General Instruction: Burden of |
| Proof11. | Proof11.PJI 1:64 |
| General Instruction—Burden of Proof-Clear and Convincing Evidence12.(This pattern charge is for use in those cases where the issue is fraud. | General Instruction—Burden of Proof-Clear and Convincing Evidence12.(This pattern charge is for use in those cases where the issue is fraud. |
| .)13. | Simcuski v. Saeli, 44 NY2d 442.)13.PJI 2:230 |
| Negligent | Negligent |
| Misrepresentation14. | Misrepresentation14.PJI 2:275 |
| Comparative Fault-Apportionment of fault Between Defendants (With modification):Defendant VINCENT J. CASALE and Defendant VINCENT J. CASALE & CO. have already been found liable as a mailer of law. If you also find Defendants DONNA GEN FILE, MICHAEL GENTILE and GENTILES INC. are at fault, you must decide what part of the total fault each | Comparative Fault-Apportionment of fault Between Defendants (With modification):Defendant VINCENT J. CASALE and Defendant VINCENT J. CASALE & CO. have already been found liable as a mailer of law. If you also find Defendants DONNA GEN FILE, MICHAEL GENTILE and GENTILES INC. are at fault, you must decide what part of the total fault each |
| bears.15. | bears.15.PJI 3:8 |
| Intentional Torts—Interference with Person or Property—Trespass to | Intentional Torts—Interference with Person or Property—Trespass to |
| Land16. | Land16.PJI 3:9 |
| Intentional Torts—Interference with person or Property—Trespass to | Intentional Torts—Interference with person or Property—Trespass to |
| Chattels17. | Chattels17.PJI 3:10 |
| intentional Torts—Interference with Person or Property—Conversion—Wrongful | intentional Torts—Interference with Person or Property—Conversion—Wrongful |
| Taking.18..20 | Taking.18.PJI 3.20 |
| Intentional Torts—Fraud and | Intentional Torts—Fraud and |
| Deceit.19. Contracts—Elements20. | Deceit.19.PJI 4:1 Contracts—Elements20.PJI: 1:94 |
| General Instruction—Use of Pre-Trial Deposition Upon | General Instruction—Use of Pre-Trial Deposition Upon |
| Trial21. | Trial21.PJI 1:97 |
| General Instruction—Special VerdictsC. Westlaw Resources1.Documents related to this caseVerified Complaint, | General Instruction—Special VerdictsC. Westlaw Resources1.Documents related to this caseVerified Complaint, |
| Answer | 2011 WL 11747781Answer |
| and Counterclaim, | and Counterclaim, |
| Verified | 2011 WL 11747780Verified |
| Answer and Counterclaim, | Answer and Counterclaim, |
| Affirmation | 2012 WL 10902074Affirmation |
| in Support of Motion for Summary Judgment, | in Support of Motion for Summary Judgment, |
| Gentile | 2013 WL 8563974Gentile |
| Defendants' Reply Affirmation in Further Support of Their Motion for Summary Judgment, 2013 WL 8563975Affirmation in Opposition to Defendants Motion for Summary Judgment, | Defendants' Reply Affirmation in Further Support of Their Motion for Summary Judgment, 2013 WL 8563975Affirmation in Opposition to Defendants Motion for Summary Judgment, |
| Affirmation | 2013 WL 8563982Affirmation |
| in Reply to Plaintiffs Motion for Summary Judgment, | in Reply to Plaintiffs Motion for Summary Judgment, |
| Order | 2013 WL 8563984Order |
| Denying Parties' Respective Motions for Summary Judgment while granting summary judgment against certain defendants on default, | Denying Parties' Respective Motions for Summary Judgment while granting summary judgment against certain defendants on default, |
| Defendants' | 2013 WL 8635434Defendants' |
| Request to Charge, | Request to Charge, |
| Plaintiffs' | 2014 WL 2511643Plaintiffs' |
| Proposed Jury Charges, | Proposed Jury Charges, |
| Verdict | 2014 WL 2511645Verdict |
| Sheet, | Sheet, |
| Verdict | 2014 WL 2480422Verdict |
| (Extract), 2014 WL 2727106.2.Sample WestlawNext query for documents in similar cases: misrepresentation or conversion in “sale of business”D. Research References1.Key | (Extract), 2014 WL 2727106.2.Sample WestlawNext query for documents in similar cases: misrepresentation or conversion in “sale of business”D. Research References1.Key |
| Numbers , , , , 2.Westlaw | NumbersContracts 324, 326, 353Conversion and civil theft 165Fraud 31, 32, 652.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:207§ 13:7 Breach of contract and unjust enrichment/construction contract; owner suit against contractorA. BackgroundType of Case: Breach of contract/unjust enrichment/negligence/malpracticeType of Injury/Damages: Unjust enrichmentCase Name: 14-31 28TH AVENUE LLC, Plaintiff(s), v. HWANG & PARK DESIGN ETAL AND DEVELOPMENT INC., Liz Zhen Hua, Michael Hwang, Three Star Construction Co Inc., Leon Zhou, Mohammed Hussain, EJK Engineering Inc., Emmanuel J. Katernis, PE, XYZ Corps 1-5 and John Does 1-5. Defendant(s).Court: New York State Supreme Court, Queens CountyJudge: Hon. Marguerite A. GraysDocket Number: 24431/2012Outcome: Verdict for plaintiff against defendant Michael Hwang in amount of $125,000 on unjust enrichment claim only; claim to pierce corporate veil was dismissedDate of verdict: July 2, 2015Brief Summary of Factual Allegations: 14-31 28th Avenue L.L.C. reportedly owned property in Astoria, N.Y., and hired Hwang & Park Design and Development Inc., Three Star Construction Co. Inc., and EJK Engineering Inc. to perform construction services at the property, including services related to shoring, excavation, underpinning, footing/foundation, sheet metal, concrete slabs, metal framing, inspections, concrete lab reports and interior metal stairs. The property owner said the contractors failed to complete the work and performed the work in a defective manner and not according to contract. It claimed it made payments for the work, and Michael Hwang and Li Zhen Hua, officers of Hwang & Park, and Leon Zhou and Mohammed Hussain, officers of Three Star, failed to hold the funds in trust for subcontractors.14-31 28th Avenue filed a lawsuit against Hwang & Park, Hwang, Hua, Three Star, Zhou, Hussain, EJK, and EJK's employee Emmanuel Katerinis, P.E., asserting claims of breach of contract, negligence, unjust enrichment, violation of N.Y. Lien Law Article 3A, professional malpractice, negligent hiring and supervision, vicarious liability, and loss of use of funds and property. The plaintiff also filed a claim against Hua as guarantor and filed claims against Hua, Hwang, Zhou and Hussain to pierce the corporate veil.The plaintiff sought compensation for property damage, loss of use of the property, and loss of income from the property.Hwang denied the allegations, filed a cross-claim against Hwang & Park, and filed a counterclaim, asserting that as a result of the lawsuit, his credibility and reputation in the community were damaged. He sought monetary damages, including attorney fees. The other defendants defaulted.The case proceeded to trial, and via a directed verdict, the court awarded the plaintiff $311,957 against the defaulting defendants. The unjust enrichment claim against Hwang proceeded to a jury, and the jury found in favor of the plaintiff, awarding it $125,000. The plaintiff's claim against Hwang to pierce the corporate veil proceeded to the court, and the court found in favor of Hwang and dismissed the claim.B. Plaintiff's Proposed Jury Instructions1.Consider Only Testimony & Exhibits -PJI 1:252.Falsus In Uno—PJI 1:223.Five-Sixths Verdict—PJI 1:264.Weighing Testimony-PJI 1:415.. Burden Of Proof-PJI 1:606.Interested Witness-PJI 1:917.Circumstantial Evidence — | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Law of Torts4.West's McKinney's FormsWest's McKinney's Forms Civil Practice Law and Rules § 4:207§ 13:7 Breach of contract and unjust enrichment/construction contract; owner suit against contractorA. BackgroundType of Case: Breach of contract/unjust enrichment/negligence/malpracticeType of Injury/Damages: Unjust enrichmentCase Name: 14-31 28TH AVENUE LLC, Plaintiff(s), v. HWANG & PARK DESIGN ETAL AND DEVELOPMENT INC., Liz Zhen Hua, Michael Hwang, Three Star Construction Co Inc., Leon Zhou, Mohammed Hussain, EJK Engineering Inc., Emmanuel J. Katernis, PE, XYZ Corps 1-5 and John Does 1-5. Defendant(s).Court: New York State Supreme Court, Queens CountyJudge: Hon. Marguerite A. GraysDocket Number: 24431/2012Outcome: Verdict for plaintiff against defendant Michael Hwang in amount of $125,000 on unjust enrichment claim only; claim to pierce corporate veil was dismissedDate of verdict: July 2, 2015Brief Summary of Factual Allegations: 14-31 28th Avenue L.L.C. reportedly owned property in Astoria, N.Y., and hired Hwang & Park Design and Development Inc., Three Star Construction Co. Inc., and EJK Engineering Inc. to perform construction services at the property, including services related to shoring, excavation, underpinning, footing/foundation, sheet metal, concrete slabs, metal framing, inspections, concrete lab reports and interior metal stairs. The property owner said the contractors failed to complete the work and performed the work in a defective manner and not according to contract. It claimed it made payments for the work, and Michael Hwang and Li Zhen Hua, officers of Hwang & Park, and Leon Zhou and Mohammed Hussain, officers of Three Star, failed to hold the funds in trust for subcontractors.14-31 28th Avenue filed a lawsuit against Hwang & Park, Hwang, Hua, Three Star, Zhou, Hussain, EJK, and EJK's employee Emmanuel Katerinis, P.E., asserting claims of breach of contract, negligence, unjust enrichment, violation of N.Y. Lien Law Article 3A, professional malpractice, negligent hiring and supervision, vicarious liability, and loss of use of funds and property. The plaintiff also filed a claim against Hua as guarantor and filed claims against Hua, Hwang, Zhou and Hussain to pierce the corporate veil.The plaintiff sought compensation for property damage, loss of use of the property, and loss of income from the property.Hwang denied the allegations, filed a cross-claim against Hwang & Park, and filed a counterclaim, asserting that as a result of the lawsuit, his credibility and reputation in the community were damaged. He sought monetary damages, including attorney fees. The other defendants defaulted.The case proceeded to trial, and via a directed verdict, the court awarded the plaintiff $311,957 against the defaulting defendants. The unjust enrichment claim against Hwang proceeded to a jury, and the jury found in favor of the plaintiff, awarding it $125,000. The plaintiff's claim against Hwang to pierce the corporate veil proceeded to the court, and the court found in favor of Hwang and dismissed the claim.B. Plaintiff's Proposed Jury Instructions1.Consider Only Testimony & Exhibits -PJI 1:252.Falsus In Uno—PJI 1:223.Five-Sixths Verdict—PJI 1:264.Weighing Testimony-PJI 1:415.. Burden Of Proof-PJI 1:606.Interested Witness-PJI 1:917.Circumstantial Evidence — |
| 8.Juror's | PJI 1:708.Juror's |
| Use Of Professional Expertise -PJI 1:25a9.No Inference From Rulings- | Use Of Professional Expertise -PJI 1:25a9.No Inference From Rulings- |
| 10.Consider | PJI 1:3910.Consider |
| Only Competent Evidence-PJI 1:4011.Interested Witness- | Only Competent Evidence-PJI 1:4011.Interested Witness- |
| 12.Breach | PJI 1:9112.Breach |
| Of Contract | Of Contract |
| PJI 4:1 |
| [modified]Plaintiff seeks to recover damages for breach of a contract in the sum of $311,575.00. Defendants failed to perform under the agreement that is, failed to properly and according to the approved plans to construct the premises specifically they failed to construct proper foundations. Plaintiff claims that as a result of defendants' failure to perform under above agreement they were damaged.The intent of the parties to enter into contract is determined by considering the relationship of the parties, what they said and what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent by his/her words and acts may be considered.Within every contract is an implied covenant of good faith and fair dealing. This covenant is breached when a party acts in a manner that deprives the other party of the right to receive benefits under their agreement. The covenant of good faith encompasses any promises which a reasonable person in the position of the promisee would be justified in understanding were included. However, the covenant of good faith cannot be construed so broadly as to nullify the express terms of a contract, or to create independent contractual rights. In order to establish a breach of good faith and fair dealing, plaintiff must prove facts that tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff.If you find that the terms of the agreement were breached either in express or implied language, you will find for the plaintiff. If you find that neither in express nor implied language any term of the agreement was breached then you will find for the defendants.[Oral Modification Of A Contract. | [modified]Plaintiff seeks to recover damages for breach of a contract in the sum of $311,575.00. Defendants failed to perform under the agreement that is, failed to properly and according to the approved plans to construct the premises specifically they failed to construct proper foundations. Plaintiff claims that as a result of defendants' failure to perform under above agreement they were damaged.The intent of the parties to enter into contract is determined by considering the relationship of the parties, what they said and what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent by his/her words and acts may be considered.Within every contract is an implied covenant of good faith and fair dealing. This covenant is breached when a party acts in a manner that deprives the other party of the right to receive benefits under their agreement. The covenant of good faith encompasses any promises which a reasonable person in the position of the promisee would be justified in understanding were included. However, the covenant of good faith cannot be construed so broadly as to nullify the express terms of a contract, or to create independent contractual rights. In order to establish a breach of good faith and fair dealing, plaintiff must prove facts that tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff.If you find that the terms of the agreement were breached either in express or implied language, you will find for the plaintiff. If you find that neither in express nor implied language any term of the agreement was breached then you will find for the defendants.[Oral Modification Of A Contract. |
| PJI 4:1 |
| Comments, p 609, Second Ed., 2005)Oral directions to perform extra work may modify or waive a contract provision requiring written authorization. Tridee Associates. Inc. v New York City School Construction Authority, 292 AD2d 444; Barsotti's, Inc. v. Consolidated Edison Co. of New York, 254 Ad2d 211.Waiver, part performance and estoppel constitute exceptions to General Obligations law § 15-301(1), see Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Spa Realty Associates, 42 NY2d 229, provided that the partial performance or the acts taken in detrimental reliance are “unequivocally referable” to the new, oral agreement, | Comments, p 609, Second Ed., 2005)Oral directions to perform extra work may modify or waive a contract provision requiring written authorization. Tridee Associates. Inc. v New York City School Construction Authority, 292 AD2d 444; Barsotti's, Inc. v. Consolidated Edison Co. of New York, 254 Ad2d 211.Waiver, part performance and estoppel constitute exceptions to General Obligations law § 15-301(1), see Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Spa Realty Associates, 42 NY2d 229, provided that the partial performance or the acts taken in detrimental reliance are “unequivocally referable” to the new, oral agreement, |
| .13. | Rose v Spa Realty Associates, 42 NY2d 338.13.PJI 1:40 |
| Consider Only Competent | Consider Only Competent |
| Evidence;14. | Evidence;14.PJI 1:77 |
| Failure To Produce | Failure To Produce |
| Documents;15. | Documents;15.PJI 1:55 |
| Admission Against Interest- By | Admission Against Interest- By |
| Conduct;16. | Conduct;16.PJI: 1:95 |
| -General Verdict17.Expert Witness — | -General Verdict17.Expert Witness — |
| 18.Proximate | PJI 1:9018.Proximate |
| Cause-PJI 2:7019.No Inference from rulings | Cause-PJI 2:7019.No Inference from rulings |
| 20.Negligence 21.Malpractice | PJI 1:3920.Negligence PJI 2:1021.Malpractice |
| by EJK Engineering Inc., Emmanuel J. Katerinis, Pe | by EJK Engineering Inc., Emmanuel J. Katerinis, Pe |
| ()22. | (Pji 2:153)22.PJI 4:2 |
| — Unjust Enrichment23.Piercing the Corporate veil24.Violation of Lien Law Article 3A25.Missing Witness Charge | — Unjust Enrichment23.Piercing the Corporate veil24.Violation of Lien Law Article 3A25.Missing Witness Charge |
| PJI 1:75 |
| [modified]Plaintiff called def. Hwang as a witness based on a subpoena to appear and testify but Def Hwang was missing.26.Failure to Produce Documents — | [modified]Plaintiff called def. Hwang as a witness based on a subpoena to appear and testify but Def Hwang was missing.26.Failure to Produce Documents — |
| PJI 1:77 |
| [modified]Defendant Hwang failed to produce stock certificates the cancellation thereof and issuance of a new stock certificate to co-defendant Li.27.Damages. | [modified]Defendant Hwang failed to produce stock certificates the cancellation thereof and issuance of a new stock certificate to co-defendant Li.27.Damages. |
| PJI 4:20 |
| [modified]My charge to you on the law of damages must not been be taken as a suggestion that you should find for the plaintiff. It is for you to decide on the evidence presented and the rules of law I have given you whether the plaintiff is entitled to recover from the defendants. If you decide that plaintiff is not entitled to recovery, you need not consider damages. Only if you decide that the plaintiff is entitled to recover will you consider damages.The burden of proof to establish damages is on plaintiff.Consequential damages, such as rent lost in our case, are not recoverable in an action to recover damages for breach of contract unless the plaintiff proves that such damages were foreseeable and within the contemplation of the parties at the time the contract was made. (see American List Corp. v. US News and World Report, Inc., 75 NY2d 38)Lost future profits may be recovered provided that (1) it is certain that the loss was caused by the breach; (2) the amount of loss is established with reasonable certainty, i.e. is not left to speculations; and (3) the particular damages were fairly within the contemplation of the parties at the time of the contract. See | [modified]My charge to you on the law of damages must not been be taken as a suggestion that you should find for the plaintiff. It is for you to decide on the evidence presented and the rules of law I have given you whether the plaintiff is entitled to recover from the defendants. If you decide that plaintiff is not entitled to recovery, you need not consider damages. Only if you decide that the plaintiff is entitled to recover will you consider damages.The burden of proof to establish damages is on plaintiff.Consequential damages, such as rent lost in our case, are not recoverable in an action to recover damages for breach of contract unless the plaintiff proves that such damages were foreseeable and within the contemplation of the parties at the time the contract was made. (see American List Corp. v. US News and World Report, Inc., 75 NY2d 38)Lost future profits may be recovered provided that (1) it is certain that the loss was caused by the breach; (2) the amount of loss is established with reasonable certainty, i.e. is not left to speculations; and (3) the particular damages were fairly within the contemplation of the parties at the time of the contract. See |
| PJI 4:20 |
| Comments.When a building contractor has partially performed under the contract then you need to determine the amount of uncompleted work.If you find that the plaintiff is entitled to recover from the defendants, you must render a verdict in a sum of money that will justify and fairly compensate the plaintiff for all losses resulting from the injuries sustained.In considering any damages, you must deduct any payments or benefits received by plaintiff from the defendants.C. Case Documents available on | Comments.When a building contractor has partially performed under the contract then you need to determine the amount of uncompleted work.If you find that the plaintiff is entitled to recover from the defendants, you must render a verdict in a sum of money that will justify and fairly compensate the plaintiff for all losses resulting from the injuries sustained.In considering any damages, you must deduct any payments or benefits received by plaintiff from the defendants.C. Case Documents available on |
| Westlaw | Westlaw2013 WL 10945803 (N.Y.Sup.) |
| (Trial Pleading), Verified Answer of defendant Michael Hwang with Counterclaim and | (Trial Pleading), Verified Answer of defendant Michael Hwang with Counterclaim and |
| Cross-Claim | Cross-Claim2015 WL 5175818 (N.Y.Sup.) |
| (Jury Instruction), Amended Proposed Jury Instructions by | (Jury Instruction), Amended Proposed Jury Instructions by |
| Plaintiff | Plaintiff2015 WL 5175766 (N.Y.Sup.) |
| (Verdict, Agreement and Settlement), Verdict Sheet2015 WL 5190859 | (Verdict, Agreement and Settlement), Verdict Sheet2015 WL 5190859 |
| (N.Y.Sup.), 2015 N.Y. Slip Op. 31681(U) |
| (Trial Order), Court decision dismissing complaint to pierce corporate | (Trial Order), Court decision dismissing complaint to pierce corporate |
| veil | veil2015 WL 5192454 (N.Y.Sup.) |
| (Trial Order), Court order dismissing certain claimsSample Westlaw Query for Trial Court documents in Similar Cases: “construction contract” and “unjust enrichment”D. Research References1.Key | (Trial Order), Court order dismissing certain claimsSample Westlaw Query for Trial Court documents in Similar Cases: “construction contract” and “unjust enrichment”D. Research References1.Key |
| Numbers , , , , , , , , 2.Westlaw | NumbersContracts 275, 280, 296, 297, 320, 353, 354Implied and Constructive Contracts 3, 55, 1102.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Contract Law§ 13:8 Breach of contract for services rendered by brokerA. BackgroundType of Case: Breach of contract for services rendered by brokerType of Damages: Commission or reasonable value of servicesCase Name: Eli Jemal v. ZTI Corp.Court: New York State Supreme Court, New York CountyJudge: Hon. Margaret A. ChanDocket Number: 1133982011Outcome: Verdict for defendant.Date of verdict: September 12, 2017Brief Summary of Factual Allegations: Plaintiff alleged breach of an agreement between himself and defendant for payment of a three percent commission on sale of certain commercial property, after the property was sold to an affiliate of the tenant previously procured by the plaintiff, pursuant to the tenant's option to purchase.B. Jury Instructions | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Contract Law§ 13:8 Breach of contract for services rendered by brokerA. BackgroundType of Case: Breach of contract for services rendered by brokerType of Damages: Commission or reasonable value of servicesCase Name: Eli Jemal v. ZTI Corp.Court: New York State Supreme Court, New York CountyJudge: Hon. Margaret A. ChanDocket Number: 1133982011Outcome: Verdict for defendant.Date of verdict: September 12, 2017Brief Summary of Factual Allegations: Plaintiff alleged breach of an agreement between himself and defendant for payment of a three percent commission on sale of certain commercial property, after the property was sold to an affiliate of the tenant previously procured by the plaintiff, pursuant to the tenant's option to purchase.B. Jury Instructions |
| Given1.Introduction2.Review | Given1.PJI 1:20Introduction2.PJI 1:21Review |
| of Principles | of Principles |
| stated3.Falsus | stated3.PJI 1:22Falsus |
| in | in |
| Uno4.Burden | Uno4.PJI 1:23Burden |
| of | of |
| Proof5.Return | Proof5.PJI 1:24Return |
| to | to |
| Courtroom6.Consider | Courtroom6.PJI 1:25Consider |
| only Testimony and | only Testimony and |
| Exhibits7.Jurors | Exhibits7.PJI 1:25AJurors |
| Use of Professional | Use of Professional |
| Expertise8.Five | Expertise8.PJI 1:26Five |
| Sixths | Sixths |
| Verdict9.Exclude Sympathy10.Alternate Jurors11.Impartiality12.Jury Function13.Court Function14.No | Verdict9.PJI 1:27Exclude Sympathy10.PJI 1:29Alternate Jurors11.PJI 1:36Impartiality12.PJI 1:37Jury Function13.PJI 1:38Court Function14.PJI 1:39No |
| Inference from | Inference from |
| Rulings15.Consider | Rulings15.PJI 1:40Consider |
| Only Competent | Only Competent |
| Evidence16.Weighing Testimony17.Circumstantial Evidence18.Questions | Evidence16.PJI 1:41Weighing Testimony17.PJI 1:70Circumstantial Evidence18.PJI 1:104Questions |
| by | by |
| Jurors19..1Contracts | Jurors19.PJI 4.1Contracts |
| — | — |
| Elements20..1.1Elements | Elements20.PJI 4.1.1Elements |
| of breach of Contract [modified]As you have heard, the plaintiff seeks to recover damages for breach of contract. Plaintiff claims that he had a contract with Defendant requiring Defendant to pay Plaintiff a brokerage fee for the sale of 1501 Pitkin Ave, that Plaintiff did what he was required to do under the contract and that Defendant breached the contract by not paying the brokerage fee. Defendant claims that it did not agree to the contract for a brokerage fee for the sale of 1501 Pitkin Ave.Plaintiff has the burden of proving, by a preponderance of the evidence, that he had a contract with Defendant requiring that Defendant pay 3% of the sale price of 1501 Pitkin Ave, that Plaintiff did what he was required to do under the contract, that Defendant breached the contract by not doing what it was required to do under the contract and that Plaintiff sustained damages because of Defendant's breach.If you decide that Plaintiff had a contract with Defendant for a commission based on the sale of 1501 Pitkin Ave, and that Plaintiff did what he was required to do under the contract, and that Defendant breached the contract by not paying the commission, you will find for Plaintiff on his breach of contract claim and you will go on to consider his damages. If you decide that Plaintiff did not have a contract with Defendant, Plaintiff did not do what he was required to do under the contract, Defendant did not breach the contract, or its performance was excused, you will find for Defendant and you will report to the court.Plaintiff claims that Defendant by Mr. Gruebitz, orally agreed to pay him a 3% commission and is obligated by his words and conduct. Defendant, by Mr. Gruebitz, claims that he did not say or engage in conduct, to obligate Defendant to pay Plaintiff a 3% commission.The intent of the parties is determined by considering their relationship, what they said and what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent indicated by his words or conduct may be considered. If you decide that Defendant did not agree, by words or conduct on which plaintiff relies or that Defendant's statements or actions do not show an intention to be obligated by his words or conduct, you will find for Defendant on this issue and report your verdict to the court.If you decide that Defendant said or engaged in conduct agreeing to pay plaintiff a 3% commission on the sale of the 1501 Pitkin Ave and that Defendant's statements or actions show an intention to be obligated by his words or conduct, you will find for plaintiff that Defendant agreed to pay him a 3% commission for the sale of 1501 Pitkin Ave.Defendant contends that the written brokerage agreement contains a provision of the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent.GOL 15-301(1) states that: A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent. Plaintiff contends that an Agreement to pay a commission to a real estate broker does not have to be in writing. An oral agreement to pay a commission is a valid agreement and is | of breach of Contract [modified]As you have heard, the plaintiff seeks to recover damages for breach of contract. Plaintiff claims that he had a contract with Defendant requiring Defendant to pay Plaintiff a brokerage fee for the sale of 1501 Pitkin Ave, that Plaintiff did what he was required to do under the contract and that Defendant breached the contract by not paying the brokerage fee. Defendant claims that it did not agree to the contract for a brokerage fee for the sale of 1501 Pitkin Ave.Plaintiff has the burden of proving, by a preponderance of the evidence, that he had a contract with Defendant requiring that Defendant pay 3% of the sale price of 1501 Pitkin Ave, that Plaintiff did what he was required to do under the contract, that Defendant breached the contract by not doing what it was required to do under the contract and that Plaintiff sustained damages because of Defendant's breach.If you decide that Plaintiff had a contract with Defendant for a commission based on the sale of 1501 Pitkin Ave, and that Plaintiff did what he was required to do under the contract, and that Defendant breached the contract by not paying the commission, you will find for Plaintiff on his breach of contract claim and you will go on to consider his damages. If you decide that Plaintiff did not have a contract with Defendant, Plaintiff did not do what he was required to do under the contract, Defendant did not breach the contract, or its performance was excused, you will find for Defendant and you will report to the court.Plaintiff claims that Defendant by Mr. Gruebitz, orally agreed to pay him a 3% commission and is obligated by his words and conduct. Defendant, by Mr. Gruebitz, claims that he did not say or engage in conduct, to obligate Defendant to pay Plaintiff a 3% commission.The intent of the parties is determined by considering their relationship, what they said and what they did and all of the surrounding circumstances. A person's secret intent has no bearing; only the intent indicated by his words or conduct may be considered. If you decide that Defendant did not agree, by words or conduct on which plaintiff relies or that Defendant's statements or actions do not show an intention to be obligated by his words or conduct, you will find for Defendant on this issue and report your verdict to the court.If you decide that Defendant said or engaged in conduct agreeing to pay plaintiff a 3% commission on the sale of the 1501 Pitkin Ave and that Defendant's statements or actions show an intention to be obligated by his words or conduct, you will find for plaintiff that Defendant agreed to pay him a 3% commission for the sale of 1501 Pitkin Ave.Defendant contends that the written brokerage agreement contains a provision of the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent.GOL 15-301(1) states that: A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent. Plaintiff contends that an Agreement to pay a commission to a real estate broker does not have to be in writing. An oral agreement to pay a commission is a valid agreement and is |
| enforceable. 21.Contracts | enforceable. 21.PJI 4:20Contracts |
| — Damages — | — Damages — |
| Generally22..31Contracts | Generally22.PJI 4.31Contracts |
| for Services — Action for Services | for Services — Action for Services |
| Rendered23.Conclusion24.AlternatesC. Case | Rendered23.PJI 1:28Conclusion24.PJI 1:29AlternatesC. Case |
| Documents available on | Documents available on |
| Westlaw | Westlaw2011 WL 13238770 |
| (Trial Pleading), Verified | (Trial Pleading), Verified |
| Complaint | Complaint2017 WL 5819790 |
| (Trial Order), Certification of | (Trial Order), Certification of |
| verdict | verdict2012 WL 10028156 |
| (Trial Order), Order denying motion to dismiss complaintD. Research References1.Key | (Trial Order), Order denying motion to dismiss complaintD. Research References1.Key |
| Numbers , , , , 2.Westlaw | NumbersContracts 22, 27, 28, 241Implied and Constructive Contracts 33, 602.Westlaw |
| Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Contract LawAppendix 13A Outline of PJI Comments for ContractsMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Contracts, on the following specific | Litigation ResourcesNew York Pattern Jury InstructionsNew York Jury Verdicts & SettlementsNew York Trial Court DocumentsTrial Court Documents — Jury Instruction Filings3.Trial StrategyNew York Damages AwardsNew York Practice Series—Evidence in New York State and Federal CourtsNew York Practice Series—New York Contract LawAppendix 13A Outline of PJI Comments for ContractsMost Pattern Jury Instructions are accompanied by a Comment that amounts to a research paper on the topic of the instruction.In some instances, the Comments are sufficiently complex to warrant their own outlines. Following are outlines of PJI Comments in the area of Contracts, on the following specific |
| topics:ElementsFraud | topics:•Elements•Fraud |
| in the | in the |
| ExecutionDamages | Execution•Damages |
| — | — |
| GenerallyBreach | Generally•Breach |
| of Employment Contract and | of Employment Contract and |
| DamagesAction | Damages•Action |
| for Services Rendered — By | for Services Rendered — By |
| AttorneyBy BrokerInsurance ContractsOral | Attorney•By Broker•Insurance Contracts•Oral |
| contracts and Binders/Agents and | contracts and Binders/Agents and |
| BrokersAccidental DeathUninsured | Brokers•Accidental Death•Uninsured |
| Motorist | Motorist |
| EndorsementJudgment | Endorsement•Judgment |
| Creditor's Action Against | Creditor's Action Against |
| InsurerExcess | Insurer•Excess |
| Liability for Bad Faith Settlement or Failure to SettleContracts — ElementsComment following | Liability for Bad Faith Settlement or Failure to SettleContracts — ElementsComment following |
| (Vol. | PJI 4:1(Vol. |
| 2B, | 2B, |
| NY PJI, at 2 |
| (2018))I.Elements of Breach of ContractII.Contract FormationA.Mutual AssentB.Unilateral and Bilateral Contracts/Conduct as AcceptanceC.Consideration1.Past Consideration and Pre-existing Legal DutiesD.Contracts Implied-in-Fact1.In General2.Implied-in-Fact Contracts for Services3.Other Implied-in-Fact ContractsE.Indefinite/Incomplete Contracts1.Intent to Be Bound Only After Execution of Formal Written Agreement2.Missing Price Term3.Best Efforts Clauses4.Other Material Missing TermsF.Promissory EstoppelG.Effect of Party's Failure to Read Contract DocumentsH.Minots' ContractsI.Incompetent PartiesJ.Unconscionable ContractsIII.Contracting PartiesA.AgentsB.AttorneysC.Corporate Directors and OfficersD.Successor CorporationsE.Corporation By EstoppelF.Third Party Beneficiaries1.In General2.Insurance Policies3.Construction Contracts4.Utility ContractsIV.PerformanceA.Conditions Precedent to the Obligation to PerformB.Performance Exclused1.Waiver2.Impossibility3.Frustration of Purpose4.Force majeures5.Performance Prevented by a PartyC.Time for PerformanceV.BreachA.Breach of Contract Distinguished from Tort1.In General2.Liability to Third PersonsB.Anticipatory Repudiation1.In General2.Contracts for the Sale and Lease of Real Property3.Other ContractsVI.EnforcementA.Contract Construction1.In General2.Ambiguous Contracts3.Interpreting Different Parts of a Contract4.Separate and Related Contracts5.Interpreting Words and PhrasesB.WaiverC.Equitable EstoppelD.Statute of Frauds1.In General2.Types of Agreements Subject to the Statute of Frauds3.Avoiding the Statute of FraudsE.Parol Evidence RuleF.Illegal Contracts1.In General2.Contracts Violating Licensing Requirements3.Contracts Violating Usury Laws4.Contracts Involving Employment of Undocumented Workers5.Contracts Involving Sexual and Marital Relations6.Contracts Violating the Rule Against Perpetuities7.Non-compete Clauses in Contracts Involving Personal ServicesG.Statute of Limitations1.In General2.Tolling and Postponement of Accrual3.Particular ContractsVII.Specific Contracts ProvisionsA.Unconditional Termination ProvisionsB.Time of the Essence ClausesC.Marital Agreements and Divorce Settlements1.Separation Agreements2.Prenuptial Agreements3.Stipulations Settling Divorce ActionsD.Municipal ContractsE.Automatic Renewal ClausesF.Contracts Involving Not-for-Profit EntitiesG.Divisible ContractsH.Powers of AttorneyI.Contracts for the Sale of Real Property1.In General2.Mortgage Contingency ClausesJ.LeasesK.Partnership AgreementsL.ReleasesM.Stipulations of SettlementN.Limitations on LiabilityO.Agreements to Purchase Insurance or Name Promisee as Additional InsuredP.Assignment AgreementsQ.Contracts of GuaranteeR.Performance/Surety BondsS.Attorneys' Fee AgreementsT.Escrow AgreementsUIndemnification AgreementsV.Letters of CreditW.OptionsX.Right of First RefusalY.Account StatedZ.Implied Covenant of Good Faith and Fair DealingAA.Arbitration AgreementsBB.Forum Selection ClausesCC.Choice of Law ClausesVIII.Statutory Consumer ProtectionsContracts - Quasi Contract - Restitution - Unjust Enrichment Comment following | (2018))I.Elements of Breach of ContractII.Contract FormationA.Mutual AssentB.Unilateral and Bilateral Contracts/Conduct as AcceptanceC.Consideration1.Past Consideration and Pre-existing Legal DutiesD.Contracts Implied-in-Fact1.In General2.Implied-in-Fact Contracts for Services3.Other Implied-in-Fact ContractsE.Indefinite/Incomplete Contracts1.Intent to Be Bound Only After Execution of Formal Written Agreement2.Missing Price Term3.Best Efforts Clauses4.Other Material Missing TermsF.Promissory EstoppelG.Effect of Party's Failure to Read Contract DocumentsH.Minots' ContractsI.Incompetent PartiesJ.Unconscionable ContractsIII.Contracting PartiesA.AgentsB.AttorneysC.Corporate Directors and OfficersD.Successor CorporationsE.Corporation By EstoppelF.Third Party Beneficiaries1.In General2.Insurance Policies3.Construction Contracts4.Utility ContractsIV.PerformanceA.Conditions Precedent to the Obligation to PerformB.Performance Exclused1.Waiver2.Impossibility3.Frustration of Purpose4.Force majeures5.Performance Prevented by a PartyC.Time for PerformanceV.BreachA.Breach of Contract Distinguished from Tort1.In General2.Liability to Third PersonsB.Anticipatory Repudiation1.In General2.Contracts for the Sale and Lease of Real Property3.Other ContractsVI.EnforcementA.Contract Construction1.In General2.Ambiguous Contracts3.Interpreting Different Parts of a Contract4.Separate and Related Contracts5.Interpreting Words and PhrasesB.WaiverC.Equitable EstoppelD.Statute of Frauds1.In General2.Types of Agreements Subject to the Statute of Frauds3.Avoiding the Statute of FraudsE.Parol Evidence RuleF.Illegal Contracts1.In General2.Contracts Violating Licensing Requirements3.Contracts Violating Usury Laws4.Contracts Involving Employment of Undocumented Workers5.Contracts Involving Sexual and Marital Relations6.Contracts Violating the Rule Against Perpetuities7.Non-compete Clauses in Contracts Involving Personal ServicesG.Statute of Limitations1.In General2.Tolling and Postponement of Accrual3.Particular ContractsVII.Specific Contracts ProvisionsA.Unconditional Termination ProvisionsB.Time of the Essence ClausesC.Marital Agreements and Divorce Settlements1.Separation Agreements2.Prenuptial Agreements3.Stipulations Settling Divorce ActionsD.Municipal ContractsE.Automatic Renewal ClausesF.Contracts Involving Not-for-Profit EntitiesG.Divisible ContractsH.Powers of AttorneyI.Contracts for the Sale of Real Property1.In General2.Mortgage Contingency ClausesJ.LeasesK.Partnership AgreementsL.ReleasesM.Stipulations of SettlementN.Limitations on LiabilityO.Agreements to Purchase Insurance or Name Promisee as Additional InsuredP.Assignment AgreementsQ.Contracts of GuaranteeR.Performance/Surety BondsS.Attorneys' Fee AgreementsT.Escrow AgreementsUIndemnification AgreementsV.Letters of CreditW.OptionsX.Right of First RefusalY.Account StatedZ.Implied Covenant of Good Faith and Fair DealingAA.Arbitration AgreementsBB.Forum Selection ClausesCC.Choice of Law ClausesVIII.Statutory Consumer ProtectionsContracts - Quasi Contract - Restitution - Unjust Enrichment Comment following |
| PJI 4:2 |
| (Vol 2B, NY PJI at 146 (2018)Quantum MeruitMoney Had and ReceivedConstructive TrustContracts — Fraud in the ExecutionComment following | (Vol 2B, NY PJI at 146 (2018)Quantum MeruitMoney Had and ReceivedConstructive TrustContracts — Fraud in the ExecutionComment following |
| (Vol. | PJI 4:10(Vol. |
| 2B, NY PJI, at 170 (2018))1.Burden of Proof2.Fraud in the Inducement3.Parol Evidence Rule4.Prenuptial AgreementsContracts — Damages — GenerallyComment following | 2B, NY PJI, at 170 (2018))1.Burden of Proof2.Fraud in the Inducement3.Parol Evidence Rule4.Prenuptial AgreementsContracts — Damages — GenerallyComment following |
| (Vol. | PJI 4:20(Vol. |
| 2B, NY PJI, at 197 (2018))1.General Rules2.Market Value3.Mitigation4.Consequential Damages5.Reliance Damages6.Lost Future Profits7.Quantum Meruit8.Real Property Contracts and Leasesa.Specific Performance9.Construction Contracts10.Performance Bonds11.Delay12.Liquidated Damages13.Liquidating Agreements14.Interest15.Attorneys' Fees16.Punitive DamagesBreach of Employment Contract and DamagesComment following | 2B, NY PJI, at 197 (2018))1.General Rules2.Market Value3.Mitigation4.Consequential Damages5.Reliance Damages6.Lost Future Profits7.Quantum Meruit8.Real Property Contracts and Leasesa.Specific Performance9.Construction Contracts10.Performance Bonds11.Delay12.Liquidated Damages13.Liquidating Agreements14.Interest15.Attorneys' Fees16.Punitive DamagesBreach of Employment Contract and DamagesComment following |
| (Vol. | PJI 4:21(Vol. |
| 2B, NY PJI, at 245 (2018))1.At Will Employment2.Severance Plans3.Retaliatory Dismissalsa.Whistleblower Law4.Jury Service5.Family Medical Leave Act6.Pension Plans7.Damages and Mitigation8.Employer's Action9.Commercial Bribery10.Collective Bargaining Agreements11.Punitive DamagesAction for Services Rendered — By AttorneyComment following | 2B, NY PJI, at 245 (2018))1.At Will Employment2.Severance Plans3.Retaliatory Dismissalsa.Whistleblower Law4.Jury Service5.Family Medical Leave Act6.Pension Plans7.Damages and Mitigation8.Employer's Action9.Commercial Bribery10.Collective Bargaining Agreements11.Punitive DamagesAction for Services Rendered — By AttorneyComment following |
| (Vol. | PJI 4:30(Vol. |
| 2B, NY PJI, at 274 (2018))1.Sources of Attorney's Right to Recover Fees2.Rules of Professional Conduct3.Retainer Agreements and Letters of Engagementa.In Generalb.Construction of Retainer Agreements4.Determining Reasonableness of the Fee5.Attorney's Recovery of Fee on an Account Stated6.Excessive and Unconscionable Fees7.Misconduct and Other Matters Affecting Attorney's Right to Recover a Fee8.Discharged Attorney's Right to Recover Feesa.Discharge Without Causeb.Discharge for Causec.Termination of Attorney-Client Relationship Due to Withdrawal, Death, Suspension or Disbarment9.Fee Disputes Involving Outgoing Attorneysa.Outgoing Attorney's Election to Take a Contingency Fee10.Attorneys' Liensa.Charging Liensb.Retaining Liens11.Fee Splitting Agreements12.Mandatory Arbitration13.Fee Disputes in Domestic Relatioins MattersAction for Services Rendered — By BrokerComment following | 2B, NY PJI, at 274 (2018))1.Sources of Attorney's Right to Recover Fees2.Rules of Professional Conduct3.Retainer Agreements and Letters of Engagementa.In Generalb.Construction of Retainer Agreements4.Determining Reasonableness of the Fee5.Attorney's Recovery of Fee on an Account Stated6.Excessive and Unconscionable Fees7.Misconduct and Other Matters Affecting Attorney's Right to Recover a Fee8.Discharged Attorney's Right to Recover Feesa.Discharge Without Causeb.Discharge for Causec.Termination of Attorney-Client Relationship Due to Withdrawal, Death, Suspension or Disbarment9.Fee Disputes Involving Outgoing Attorneysa.Outgoing Attorney's Election to Take a Contingency Fee10.Attorneys' Liensa.Charging Liensb.Retaining Liens11.Fee Splitting Agreements12.Mandatory Arbitration13.Fee Disputes in Domestic Relatioins MattersAction for Services Rendered — By BrokerComment following |
| (Vol. | PJI 4:31(Vol. |
| 2B, NY PJI, at 305 (2018))1.Licensing2.Statute of Frauds3.Elementsa.Employmentb.Ready, Willing and Ablec.Terms of Sale — Meeting of the Mindsd.Procuring Cause of Sale4.Specific Contract Terms5.Exclusive Agency Agreements & Exclusive Right to Sell Agreements6.Broker's Fiduciary Duty7.Purchaser's Liability8.DamagesInsurance Contracts — Introductory StatementComment preceding | 2B, NY PJI, at 305 (2018))1.Licensing2.Statute of Frauds3.Elementsa.Employmentb.Ready, Willing and Ablec.Terms of Sale — Meeting of the Mindsd.Procuring Cause of Sale4.Specific Contract Terms5.Exclusive Agency Agreements & Exclusive Right to Sell Agreements6.Broker's Fiduciary Duty7.Purchaser's Liability8.DamagesInsurance Contracts — Introductory StatementComment preceding |
| (Vol. | PJI 4:45(Vol. |
| 2B, NY PJI, at 351 (2018))Construing Insurance PoliciesInsurable InterestPublic Policy Restrictions on Insurance Coverage and ExclusionsDuty to DefendAdditional InsuredsExclusions“Occurrence” and “Claims-Made” Policies ContrastedDeductiblesAggregation of occurrencesMultiple Insurance CarriersReinsuranceLiability and Property Insurance ContrastedAll Risk PoliciesFidelity BondsLoss Payee ClauseAntisubrogation RuleTime Limitations and ConsiderationsRenewalInsurance contracts: Oral Contracts and Binders/Agents and BrokersComment following | 2B, NY PJI, at 351 (2018))Construing Insurance PoliciesInsurable InterestPublic Policy Restrictions on Insurance Coverage and ExclusionsDuty to DefendAdditional InsuredsExclusions“Occurrence” and “Claims-Made” Policies ContrastedDeductiblesAggregation of occurrencesMultiple Insurance CarriersReinsuranceLiability and Property Insurance ContrastedAll Risk PoliciesFidelity BondsLoss Payee ClauseAntisubrogation RuleTime Limitations and ConsiderationsRenewalInsurance contracts: Oral Contracts and Binders/Agents and BrokersComment following |
| (Vol. | PJI 4:45(Vol. |
| 2B, NY PJI, at 396 (2018))1.Statute of Frauds2.Enforceability and Agreement as to Terms3.Agent's Authority4.Oral Renewals5.Binders6.Certificates of Insurance7.Agent's or Broker's Duty and Liability to InsuredInsurance Contracts: Accidental DeathComment following | 2B, NY PJI, at 396 (2018))1.Statute of Frauds2.Enforceability and Agreement as to Terms3.Agent's Authority4.Oral Renewals5.Binders6.Certificates of Insurance7.Agent's or Broker's Duty and Liability to InsuredInsurance Contracts: Accidental DeathComment following |
| (Vol. | PJI 4:56(Vol. |
| 2B, NY PJI, at 430 (2018))1.Accident Defined2.Accident as Sole or Proximate Cause3.Policy Exclusionsa.Violation of lawb.Disease of bodily infirmityc.Death or injury resulting from medical or dental treatmentd.Overdose of medicatione.Use of intoxicants or narcoticsInsurance Coverage: Uninsured Motorist EndorsementComment following | 2B, NY PJI, at 430 (2018))1.Accident Defined2.Accident as Sole or Proximate Cause3.Policy Exclusionsa.Violation of lawb.Disease of bodily infirmityc.Death or injury resulting from medical or dental treatmentd.Overdose of medicatione.Use of intoxicants or narcoticsInsurance Coverage: Uninsured Motorist EndorsementComment following |
| (Vol. | PJI 4:65(Vol. |
| 2B, NY PJI, at 443 (2018))1.Was the claimant an insured person?2.Was there a motor vehicle accident?3.Was there a “hit and run” accident?a.Physical Contactb.Ascertainability of Driver's Identityc.Reporting the Accident4.Were notice of claim and proof of claim properly filed?5.Was the offending motor vehicle uninsured?6.Has the insurer of the offending motorist validly disclaimed?7.Has the insurer waived, or is it estopped to urge, a breach of condition by its insured or by the claimant?8.Offsets9.Underinsurance10.Injuries Sustained by Spouse11.No Duty to Advise12.Statute of LimitationsInsurance Coverage: Judgment Creditor's Action Against InsurerComment following | 2B, NY PJI, at 443 (2018))1.Was the claimant an insured person?2.Was there a motor vehicle accident?3.Was there a “hit and run” accident?a.Physical Contactb.Ascertainability of Driver's Identityc.Reporting the Accident4.Were notice of claim and proof of claim properly filed?5.Was the offending motor vehicle uninsured?6.Has the insurer of the offending motorist validly disclaimed?7.Has the insurer waived, or is it estopped to urge, a breach of condition by its insured or by the claimant?8.Offsets9.Underinsurance10.Injuries Sustained by Spouse11.No Duty to Advise12.Statute of LimitationsInsurance Coverage: Judgment Creditor's Action Against InsurerComment following |
| (Vol. | PJI 4:66(Vol. |
| 2B, NY PJI, at 466 (2018))1.Amendments to Insurance Law § 34202.Notice by the Insured3.Notice by the Injured Party4.Defensesa.Cancellation of Policyb.Other DefensesInsurance Coverage: Excess Liability for Bad Faith Settlement or Failure to SettleComment following | 2B, NY PJI, at 466 (2018))1.Amendments to Insurance Law § 34202.Notice by the Insured3.Notice by the Injured Party4.Defensesa.Cancellation of Policyb.Other DefensesInsurance Coverage: Excess Liability for Bad Faith Settlement or Failure to SettleComment following |
| (Vol. | PJI 4:67(Vol. |
| 2B, NY PJI, at 484 (2018))1.Factors Referred to in Pattern Chargea.Intent to Harmb.Error of judgment distinguishedc.Consider as though no policy limitsd.Comparative financial riskse.Exposure indicated by evidence on liability and injuriesf.Failure to investigate the factsg.Failure to negotiate, or untimeliness of negotiations, for a settlementh.Failure to accept a settlement within policy limitsi.Failure to accede to insured's request to settle within policy limitsj.Failure to accept its attorney's or adjustor's recommendation to settlek.Failure to advise insured of his right to separate counsell.Failure to inform insured of settlement possibilitiesm.Failure to advise insured of his right to contribute to settlementn.Time at which settlement offer was rejectedo.Settlement without insured's consent2.Other Considerations | 2B, NY PJI, at 484 (2018))1.Factors Referred to in Pattern Chargea.Intent to Harmb.Error of judgment distinguishedc.Consider as though no policy limitsd.Comparative financial riskse.Exposure indicated by evidence on liability and injuriesf.Failure to investigate the factsg.Failure to negotiate, or untimeliness of negotiations, for a settlementh.Failure to accept a settlement within policy limitsi.Failure to accede to insured's request to settle within policy limitsj.Failure to accept its attorney's or adjustor's recommendation to settlek.Failure to advise insured of his right to separate counsell.Failure to inform insured of settlement possibilitiesm.Failure to advise insured of his right to contribute to settlementn.Time at which settlement offer was rejectedo.Settlement without insured's consent2.Other Considerations |